The R. C. Mahon Co.

National Labor Relations Board - Board Decisions

Oct 7, 1957

118 N.L.R.B. 1537 (N.L.R.B. 1957)

THE R . C. MAHON COMPANY 1537
struck the Employer's plant. The strike was still in effect atthe time
of the hearing in the instant case. The Employer contends that Local
#35 no longer represents a majority of its employees and seeks an
election to determine its majority status.
The Board's records show that the compliance of Local #35 with
the filing requirements of Section 9 of the Act has lapsed, and, there-
fore, the only question presented is whether or not the Board will pro-
ceed to an election on the basis of the Employer's petition which, in
effect, requests an investigation of the question concerning represen-
tation raised by a labor organization which has not complied with the
filing requirements of the Act.
The Board, on similar facts, has previously interpreted Section
9 (h) of the Act as prohibiting investigation of questions concerning
representation raised by noncomplying labor organizations, whether
instituted by petitions filed by such labor organizations or by em-
ployers? Accordingly, as in the instant case, Local #35 is not in com-
pliance with the filing requirements of the Act, we find no question
concerning representation exists and shall dismiss the petition.'
[The Board dismissed the petition.]
Herman Loewenstein, Inc., 75 NLRB 377.
s For the reasons stated in his dissent to Darling and Company, 116 NLRB 374, Member
Rodgers would reverse the Loewenstein decision and direct an election in this case, but,
regardless of the outcome of such election, would certify only the arithmetical results.
The R. C. Mahon Company and Arthur J. Bussel, Edmund
Warznie, Claude V. Peters, Harry Stonkoff, Edward Schmidt,
Joseph E. Williams, Melvin L. Stanton, and Ernest Williams
The R. C. Mahon Company and International Union, United Plant
Guard Workers of America and its Amalgamated Local No.
114. Cases Nos. 7-CA-1ff21, 7-CA-1221-1, 7-CA-1221-2, 7-CA--
1221--3, 7-CA-1221-4, 7-CA-1221-6, 7-CA-1221-6, 7-CA-1221-7,
and 7-CA-1226. October 7,1957
DECISION AND ORDER
On September 12, 1956, Trial Examiner Sidney Lindner issued
his Intermediate Report in this proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and had not engaged,
in certain other alleged unfair labor practices, and recommending
that the complaint be dismissed in its entirety, as set forth in 'the copy
of the Intermediate Report attached hereto. Thereafter, the Respond-
ent and the General Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
118 NLRB No. 207.
450553-58-vol . 118-98
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman Leedom and
Members Murdock and Bean].
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
Intermediate Report, the exceptions and briefs, and the entire record
in the case, and hereby rejects the findings, conclusions, and recom-
mendations of the Trial Examiner, to the extent indicated herein.
Several years prior to 1954 the Respondent began considering the
possibility of a change from employing its own plant-protection
department to contracting for such services. This consideration there-
after arose periodically on each occasion when pay increases were
given to plant-protection personnel following the granting of wage
increases to the production and maintenance employees represented
by the United Steelworkers of America, AFL-CIO. However, on
each of these occasions, the last of which was in early September
1954, the Respondent took no steps to effect such a change. And no
such steps were taken in September 1954, despite the fact that the
Respondent did substantially less business in 1954 than it did in
1953,2 as a result of which it effected economies in other departments.
Also, in May 1953, Associated Patrol Service, a guard-service con-
tractor, solicited the Respondent's plant-protection business from
Lowther, Respondent's secretary-treasurer. Lowther requested Asso-
ciated to submit details, which was done by Associated on June 2,
1953, but the Respondent took no action on Associated's proposal.
Associated talked with Lowther again in September 1953 and October
1953, but again Respondent took no action with respect to a change-
over to contracting out its plant-protection work. In June 1954
Associated attempted but was unable to see Lowther because he was
ill, and in August 1954 Associated attempted but was unable to see
Lowther because he was "tied up" with other matters. Also in August
1954, the Melnerny Detective Agency, another guard-service con-
tractor, solicited Respondent's plant-protection business, and followed
it up with a proposal for furnishing guard service which was the
same as that later submitted by Associated and accepted by the
Respondent, as discussed more fully below. On November 19, 1954,
Respondent shut down its structural steel shop, which then employed
about 400 employees, for an anticipated period of about 6 weeks. As
testified to by Respondent witnesses, and as found by the Trial
Examiner, such a shutdown decreased the workload of the plant
'The Board also affirms the prehearing order of Trial Examiner Ralph Winkler deny-
ing the Respondent ' s motions to strike, or make more specific, paragraph 10 of the
complaint.
2 Respondent 's booked orders for 1954 were $ 30,000,000 as against $44,000,000 for 1953.
THE R. C. MAHON COMPANY 1539
guards. However, the Respondent did nothing at that time to reduce
its plant-protection force. The structural steel shop began recalling
its employees on December 8, 1954, but the full complement was not
recalled until sometime after March 1955.
On November 30, 1954, Gurjack, a plant guard, told Franson,
chief of plant protection and a supervisor as defined in the Act, that
the guards were organizing into the Union, that the union cards
were being passed out by Bussel, another of the plant guards, and
that Bussel had given him a card. Franson asked to see Gurjack's
card but was told by Gurjack that it was at home. Franson then
carried this information to McNally, Respondent's assistant personnel
manager. McNally instructed Franson to get one of the cards from
Gurjack. Franson later requested Gurj ack to get the card for him,
and when the latter refused to go home for it, Franson asked Gurj ack
to place the card in Gurjack's mailbox and Franson would pick it
up on his way to work the following morning. Gurjack complied
with Franson's instructions, and on the next morning, December 1,
Franson went to Gurjack's home, got the card from the mailbox,
and then gave it to McNally who, in turn, took the card to Lowther
and told Lowther about the Gurj ack-Franson conversation and that
this was the card which Bussel had given to Gurjack. On the same
day, McNally, upon orders from Lowther, instructed Franson to
transfer Bussel from the night shift to the day shift "where we could
watch him," and "to keep his eye" on Bussel to see if he was passing
union cards or soliciting on company time. However, as found by
the Trial Examiner, the Respondent did not have in existence a valid
rule against solicitation on company time. On December 2, Bussel
was transferred to the day shift. About this same time, Franson again
spoke to Gurjack and inquired if the latter knew whether the plant
guards had sent the applications for membership to the Union. Gur-
jack replied that he did not know, but that he and plant, guard Peters
had been talking over the question of joining the Union and Peters
had said that it would be a good idea to join the Union as it would
afford them a little protection. About this same time, Franson also
approached plant guard Williams, and asked him, "What about these
cards? Do you know anything about them?" to which Williams gave
a negative reply.
On December 3, McNally, upon orders from Lowther, instructed
Franson to lay off Bussel, Peters, and Warznie that day. McNally
told Franson to give as the reason on the termination slip "reducing
the force." As a result, Franson laid off Bussel and Warznie that
day, but for some unexplained reason did not lay off Peters until
the next day. In all three cases, the terminations were made perma-
nent, and the reason given on the termination slips was "reducing
1540 DECISIONS OF NATIONAL LABOR,RELATIONS BOARD
force." The 3 terminations reduced the plant-guard force from 15
to 12 men. On the next day, McNally asked Franson, "Chief, did you
hear any more about the cards, or anything?" and Franson replied,
"No."
On or about December 3, Associated Patrol again called on Lowther,
and this time was able to see him. Lowther asked for another pro-
posal which would eliminate overtime pay, and such a proposal was
submitted by Associated in a letter dated December 4. This elimina-
tion of overtime pay made this proposal better than Associated's
June 2, 1953, proposal, but, as already indicated, this proposal was
the same as Mclnerny's proposal in August 1954. On or about Decem-
ber 4, McNally, on orders from Lowther, solicited plant-protection
service bids from several other companies, and turned over the bids
to Lowther. On December 6, on orders of Lowther, a notice was
posted that Respondent was going to contract out its plant-protection
work, and that Respondent's plant guards would cease their employ-
ment with Respondent as of December 31, 1954. On December 10,
plant guards Williams and Schmidt went to see Lowther and asked
him if the plant guards could stay on if they took a wage cut. Lowther
replied in the negative, giving as the reason that the changeover
"had gone a little far." Lowther then stated that the lowest _bid
Respondent had received was $1.75 per hour, to which Williams
remarked, "Well, we can't beat it," and Williams and Schmidt left.3
Also on December 10, Respondent asked Associated to come in on
December 11 for a conference. This conference was held, and after
a discussion of Associated's proposal, Respondent accepted the pro-
posal, whereby Associated was to furnish a plant-protection staff
of 15 men commencing on January 1, 1955. On December 31, 1954,
Respondent's remaining 12 plant guards received termination slips
and its plant-protection department was eliminated. Since January 1,
1955, Associated has performed the plant-protection -work for the
Respondent.
The Trial Examiner found, and we agree, that Chief Franson's
interrogation of Gurjack as to whether the plant guards had sent
the applications for membership to the Union, and Franson's inter-
rogation of Williams about the union cards and if he knew anything
about them, were violations of Section 8 (a) (1) of the Act. We find
further that Franson's prior conduct of requesting to see Gurjack's
union card, requesting Gurjack to get the card for him, requesting
Gurjack to place the card in his mailbox so Franson could obtain
it, and obtaining the card from Gurjack's mailbox, constituted inter-
rogation and surveillance concerning union activity in violation of
Section 8 (a) (1). We find further that the Respondent's conduct,
3 The plant guards were then getting $1.761, per hour , plus overtime and certain
other benefits.
THE R . C. MAHON COMPANY 1541
immediately after learning of Bussel 's leadership in the union activity,
in transferring him from the night shift to the day shift "where he
could be watched ," with instructions to Franson "to keep his eye"
on Bussel , constituted surveillance of union activity in violation of
Section 8 (a) (1), in the absence of any valid rule against solicitation
on company time. We find further that all of this unlawful inter-
rogation and surveillance concerning the guards ' union activity clearly
establishes that the Respondent was hostile to such activity and enter-
tained "Union animus" from the inception of such activity.
We find , contrary to the Trial Examiner , that the layoffs of Bussel,
Warznie, and Peters were in violation of Section 8 (a) (3) of the
Act. In so finding, we rely particularly on the following : (1) On
November 19, 1954, Respondent shut down its structurel steel shop,
and although the shutdown decreased the workload of its guards and
this then was the logical time to reduce its guard force in line with
its "economy drive," it did nothing at that time to reduce the guard
force ; (2) toward the end of November union activity started among
the guards , with Bussel as the leader, and this immediately became
known to the Respondent ; ( 3) the Respondent thereupon transferred
Bussel from the night shift to the day shift for the purpose of
unlawful surveillance on his union activity , and otherwise engaged
in unlawful surveillance and interrogation concerning the guards'
union activity ; (4) about the same time the Respondent , through
Chief Franson , learned that Peters was a union supporter; (5)
although the structural steel shop had been closed down 2 weeks
without Respondent considering that fact as requiring a reduction
in the number of guards , 2 days after it learned of the guard activity
it decided that the number of guards should be reduced despite the
fact that within a few days thereafter Respondent commenced partial
resumption of the operations in the structural steel shop; ( 6) how-
ever, when it contracted out its plant-protection work a few days
after the reduction in force , it contracted not for the reduced force
of 12 guards but for the original number of 15 guards , although the
structural steel shop was still mostly closed down ; ( 7) despite the fact
that the closing of the structural steel shop was only expected to be
temporary for a period of 4 more weeks , the' 3 guards selected were
laid off permanently ; ( 8) the selection of guards to be laid off was
made personally by a top officer of Respondent , its secretary-treasurer,
and the individuals who would normally make such a decision, Fran-
son or McNally , were not even consulted about the selection or advised
of the basis for selection ; ( 9) the record shows .that the Respondent
had knowledge of the union activity of Bussel and Peters, and a
discriminatory motive as to Warznie can reasonably be inferred; and
(10) no reason at all was offered by Respondent for its selection of
1542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
these three guards to be laid off.4 In view of these circumstances,
and the Respondent's union animus, we believe that the only reason-
able conclusion to be drawn is that the Respondent laid off Bussel,.
Warznie, and Peters for the purpose of discouraging membership
in the Union, and. thereby violated Section 8 (a) (3) of the Act.
We find further, contrary to the Trial Examiner, that the Respond-
ent closed its plant-protection department on December 31, 1954, con-
tracted the work thereof, and terminated the employment of all its
plant-protection employees on that date, in violation of Section 8
(a) (3). In making this finding, we rely particularly on the follow-
ing: (1) The unlawful course of conduct engaged in by the Respond-
ent just prior thereto, consisting of interrogation and surveillance
in violation of Section 8 (a) (1), and the discriminatory layoff of
Bussel, Warznie, and Peters in violation of Section 8 (a) (3), and
all of the circumstances surrounding this conduct as fully described
above; (2) the fact that the Respondent had a proposal for con-
tracting its guard work before it since June 1953 and never acted
on it,. and then suddenly decided to contract the guard work right
after it learned of the guards' union activity; (3) although it was
not as economically advantageous for Respondent to accept Asso-
ciated's offer in June 1953 as it was in December 1954, contracting
became increasingly advantageous in the interim period prior to.
December 1954 (a) when Respondent granted a 10-cent wage increase
to the guards in July 1953, (b) when it increased its staff to 15, (c)
when it granted a 61/2-cent wage increase to the guards in August
1954, and (d) when Mclnerny submitted a proposal in August 1954
which eliminated premium overtime pay for contracting; (4) the
fact that the Mclnerny offer in August 1954 was the same as the
Associated offer which was accepted in December, and yet the Respond-
ent did not accept the Mclnerny offer, and even though Respondent
had just granted a wage increase to its guards which should have
made the Mclnerny offer even more attractive at that time; (5) the
fact that on December 3, immediately after Respondent learned of the
guards' union activity, Associated was able to see Lowther for the
first time in over a year after repeated attempts to do so; (6) the
precipitate conduct of the Respondent in posting a notice just 3 days.
later that it was eliminating its plant-protection department, before
it had even entered into an agreement with Associated to furnish
outside plant-protection service; 5 and (7) the fact that Lowther on
December 10 failed to even explore the offer of guards Williams and
4 Accordingly, the Trial Examiner's reliance on seniority, attitude, and quality of work
factors to support the legality of the layoffs is wholly gratuitous and erroneous. More-
over, even if seniority could properly be considered , the 2 dischargees were not the
3 guards lowest in seniority.
s As indicated above, such an agreement was not entered into until December 11.
THE R . C. MAHON COMPANY 1543
Schmidt to take a wage cut in order to stay on.6 In view of these cir-
cumstances, and upon the record as a whole, we can only come to
the conclusion that the Respondent's elimination of its plant-protec-
tion department was motivated by the advent of the Union and to
avoid dealing with the Union, and that the Respondent thereby vio-
lated Section 8 (a) (3) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in con-
nection with its operations described in section I of the Intermediate
Report, have a close, intimate, and substantial relation to trade, traf-
fic, and commerce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, it will be ordered that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the Respondent has engaged in interrogation
and surveillance concerning its employees' union activities, in viola-
tion of Section 8 (a) (1) of the Act. It will be ordered that the
Respondent cease and desist therefrom.
It has further been found that Respondent discriminated in regard
to the hire and tenure of employment of Arthur J. Russel and Edmund
Warznie on December 3, 1954, and Claude V. Peters on December 4,
1954. It will be ordered that the Respondent offer to them immediate
and full reinstatement to their former or substantially equivalent
positions without prejudice to 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 further be ordered that
the Respondent make them whole for any loss of pay suffered by
reason of the discrimination against them. Loss of pay shall be
based upon earnings which they normally would have earned from
the dates of the discrimination against them to the dates of offer of
reinstatement, less the period between the dates of the Intermediate
Report and this Decision and Order, and less net earnings, and shall
be 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.
ewe reject the Respondent 's contention that this evidence is inadmissible because
Lowther is deceased , and the State of Michigan has a "Dead Man's Statute." We have
scrutinized both Williams ' and Schmidt's testimony in this connection very carefully, and
as such testimony is mutually corroborative, we accept it. See Hazen f Jaeger Funeral
Home, 95 NLRB 1034, 1043; Wallick and Schwalm Company, 95 NLRB 1262, 1263,
affd. 198 F. 2d 477 (C. A. 3).
1544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has further been found that the Respondent closed its plant-
protection department on December 31, 1954, contracted the work
thereof, and terminated the employment of all its plant-protection
employees on that date, in violation of Section 8 (a) (3) of the Act.
In accordance with our usual policy in such cases, it will be ordered
that the Respondent reopen its plant-protection department, and offer
to all employees thereof who were discharged on December 31, 1954,
immediate and full reinstatement with back pay, in the manner de-
scribed above with respect to the other discriminatees 1 Our colleague
who dissents from this part of our order erroneously assumes, we
think, that our order somehow operates against Associated Patrol
Service's contract with Respondent or requires Respondent to breach
its contract. This is not so. We have no concern with this contract;
our order is not in any way directed against it, or the legal rights of
the parties to it. The fact that the Respondent in committing an un-
fair labor practice may have created a problem for itself by contract-
ing for guard services with an independent contractor is simply no
reason for the Board not to issue its customary order to reinstate
discriminatorily discharged employees. We further note that cases
cited in footnotes 12'and 13 of the dissent are inapposite here. Unlike
the situation in those cases, the Respondent is not being required to
reestablish an unwanted or unneeded operation which has been
abandoned or transferred to another location. Plant-protection serv-
ices are required and still being performed at the Respondent's same
plant, albeit by an independent contractor.
Because by its conduct found to be violative of the Act the Re-
spondent infringed fundamental rights guaranteed by the Act, the
commission of other unfair labor practices may thereby reasonably
be anticipated. It will therefore be ordered that the Respondent cease
and desist from in any manner infringing upon the rights guaranteed
its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. The R. C. Mahon Company, Detroit, Michigan, is engaged in,
and at all times material has been engaged in, commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. International Union, United Plant Guard Workers of America
and its Amalgamated Local No. 114 are labor organizations within
the meaning of Section 2 (5) of the Act.
3. By interrogation and surveillance concerning its employees' union
activity, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4 See The Houston Chronicle Publishing Company, 101 NLRB 1208 ( enforcement denied
on other grounds, 211 F. 2d 848 (C. A. 5)), and cases cited therein.
THE It. C. MAHON,COMPANY 1545
4. By discriminating with respect to the hire and tenure of em-
ployment of Arthur J. Bussel, Edmund Warznie, and Claude V. Peters,
and the employees listed in Appendix A attached hereto, thereby
discouraging the free exercise of the rights guaranteed by Section 7
of the Act and discouraging membership and activity in the above-
mentioned labor organization, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8
(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, the R. C. Mahon Company, De-
troit, Michigan, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Interfering with, restraining, and coercing its employees by
interrogation and surveillance concerning their activity in behalf and
support of International Union, United Plant Guards of America and
its Amalgamated Local No. 114, or any other labor organization of its
employees.
(b) Discouraging membership in the above-named or any other
labor organization of its employees by discriminating in regard to
hire or tenure of employment of its employees.
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing,
and 'to engage in concerted activity for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from engaging
in such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Reopen its plant-protection department, and offer to Arthur J.
Bussel, Edmund Warznie, and Claude V. Peters, and the employees
listed in Appendix A attached hereto, immediate and full reinstate-
ment to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay suffered by them in the manner set
forth in the section above entitled "TheRemedy."
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Detroit, Michigan, copies of the notice at-
tached hereto and marked "Appendix B." 8 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted by the Respondent immediately upon receipt
thereof and maintained by it for a period of sixty (60) consecutive
days thereafter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Preserve and make available to the Board or its agents upon re-
quest, for examination and copying, all payroll, social-security pay-
ment records, timecards, personnel records and reports, and all other
records necessary to determine the amount of back pay due and the
rights of employment under the terms of this Order.
(d) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER BEAN, dissenting in part:
I agree with my colleagues in finding that the Respondent has
engaged in practices violative of Section 8 (a) (1) and (3) of the Act.
I cannot agree, however, with that portion of the remedy which directs
the Respondent to reopen its plant-protection department in order to
offer reinstatement therein to the employees found to have been dis-
criminated against. While I recognize that ordinarily a part of the
remedy in cases of discriminatory discharge consists of an order
directing the reinstatement of discharged employees to their former or
substantially equivalent positions, I note that in this case there are
circumstances which militate against adoption in full of the order as
directed by the majority. Thus the record in this case discloses that the
Respondent has let out the services formerly performed by its plant-
protection department to an independent contractor who has not been
made a party to, nor entered an appearance in, these proceedings and
who appears to have been in no manner concerned with or responsible
for the unfair labor practices found to have been committed.'
Considered in the light of these circumstances, the remedy directed
in this instance exceeds the scope of any such remedy for violation of
Section 8 (a) (3) yet issued by the Board. Thus in the Houston
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
It appears that Cox, a partner in the firm with which the Respondent has contracted
for the provision of guard services , appeared as a witness for the General Counsel at the
hearing . There is nothing in the entire record , however, to indicate that responsibility
was imputed in any way to this firm for the Respondent 's unfair labor practices.
THE R . C. MAHON COMPANY 1547
'Chronicle case 10 upon which the majority relies, although the Board's
order by its terms required that the employer should reopen its city
circulation department, the decision shows that no third party's in-
terests had intervened, and that in substance all that the remedy
required was that the employer should restore its "district managers"
to their former employee status and abolish the independent con-
tractor system which it had set up for them. In the only previous
case" in which, as part of the remedy for violation of Section, 8 (a)
(3), the Board has ordered the modification or cancellation of a con-
tract, the decision shows that both the employer and the contractor
were brought into the case as parties respondent and both were found
to have participated in the unfair labor practices. I note, moreover,
that in a later case 12 in which an employer was found to have violated
Section 8 (a) (3) by refusing to reopen a struck plant when its
employees sought to return to work at the end of the strike, the Board,
in directing reinstatement of the employees thus discriminated against,
did not order the employer to reopen the closed plant but limited its
order to a provision that the employer should offer the employees
reinstatement to positions at this plant if the employer had reopened it
or, if not, to positions at any of the employer's other plants which
might be in operation. The order was thus framed in that case despite
the fact that there were no interests of any disinterested third party
to be considered.13
Where, as in the present case, the interests of a firm not a party to
the proceedings are involved, I strongly question the propriety of
a remedy such as that here directed. The effect of the provision in
question is to deprive the guard service contractor and those em-
ployed by it of the benefits of its contractual arrangement with the
Respondent without such contractor having had opportunity, to be
heard, and indeed without even having been charged with any act on its
part which might justify the abrogation of its contractual relationship.
Further, the Trial Examiner found, and my colleagues do not
challenge his factual finding, that in making the changeover to use
of a guard contractor's services the Respondent reasonably anticipated
the realization of monetary savings amounting to some 11/2 cents
10 See footnote 7, supra.
11 Butler Brothers and Alex Wasleff, 41 NLRB 843, enfd. 134 F. 2d 981 (C. A. 7), cert.
denied 320 U. ^S. 789.
11Wallick and Schwalm Company, et al ., 95 NLRB 1262, enfd. 198 F . 2d 477 (C. A. 3).
11 The Board has many times framed its remedial order in such manner as to avoid the
requirement of reopening a plant or business department whose transfer , discontinuance,
or other disposal the Board nevertheless found to have been in furtherance of unlawful
purposes . See, for example : Missouri Transit Company, 116 NLRB 587 ( transfer of
a shuttle-bus route ) Adkins Transfer Company, Inc ., 109 NLRB 956 (shutdown of a
maintenance shop) ; Tennessee - Carolina Transportation, Inc., 108 NLRB 1369 ( abolition
of a terminal office) New Madrid Manufacturing Company, 104 NLRB 117 ( closing and
removal of a plant ) Max M. Joffee Company, 74 NLRB 1568 ( transfer of plant opera-
tions ) ; Williams Motor Company , 31 NLRB 715 ( discontinuance of a repair shop).
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per hour for guards plus the savings from elimination of overtime
payments to the guards and sergeants and elimination of other op-
erational expenses. Indeed, as noted in the majority opinion, one
of the reasons relied upon therein to show the Respondent's dis-
criminatory motivation in making the changeover to a guard service
arrangement is the fact of the Respondent's relative unconcern and
delay in effectuating any change of arrangements during a substantial
period of time when the contracting of guard services was becoming
more and more economically advantageous, as contrasted with its
haste to consummate such arrangement and to notify the guards
thereof once the Respondent had learned of its guards' union activity.
Although this and the other record facts support the conclusion that
the Respondent's eventual effectuation of the changeover to use of a
guard contractor's services was motivated by the advent of the Union,
it further appears that the Respondent has in fact reduced its plant-
protection expenses through the installation of a more economical
system. In these circumstances, now to compel the Respondent to
place its operations again on an uneconomical basis may well be
deemed to exceed the bounds of a proper remedial order and to assume
the aspect of a punitive requirement.
For all of the above reasons, I would omit from the Order any
provision requiring the Respondent to reopen its plant-protection
department.
APPENDIX A
Harry Stonkoff
Andrew Fortune
Mathew Gurjack
Albert J. Range
Edward Schmidt
Joseph Williams
Melvin L. Stanton
Ernest Williams
Fritz G. Jansen
Louie B.. Phillips
Alexander St. Denis
Walter A. Jazowski
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain , or coerce our employees,
by interrogation and surveillance , concerning their activity in
behalf and support of International Union , United Plant Guard
Workers of America and its Amalgamated Local No. 114, or any
other labor organization of our employees.
WE WILL NOT discourage membership in or activities in behalf
of the above -named or any other labor organization of our em-
THE R . C. MAHON COMPANY 1549
ployees, by discriminating in any manner in regard to hire, tenure,
or any term or condition of employment.
WE wu.L offer to the following employees immediate and full
reinstatement to their former or substantially equivalent positions.
without prejudice to their seniority or other rights previously en-
joyed by them, and make them whole for any loss of earnings as a
result of the discrimination against them :
Arthur J. Bussel Joseph Williams
Edmund Warznie Melvin L. Stanton
Claude V. Peters Ernest Williams
Harry Stonkoff Fritz G. Jansen
Andrew Fortune Louie B. Phillips
Mathew Gurjack Alexander St. Denis
Albert J. Range Walter A. Jazowski
Edward Schmidt
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form labor organizations, or to join or assist the above-
named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from engaging in
any or all such activities, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment in conformity with
Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining members of any labor organization except to
the extent above stated.
THE R. C. MAHON COMPANY,
Employer.
Dated------------ ---- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced , or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding brought under Section 10 (b) of the Labor Management Rela-
tions Act, 1947, 61 Stat. 136 (herein called the Act), was held before the Trial
Examiner on June 4, 5, 6, 7, 11, and 12, 1956, pursuant to due notice to all
parties. Upon separate charges duly filed by Arthur Bussel in Case No. 7-CA-1221,
Edmund Warznie in Case No. 7-CA-1221-1, Claude V. Peters in Case No. 7-CA-
1221-2, Harry Stonkoff in Case No. 7-CA-1221-3, Edward Schmidt in Case No.
7-CA-1221-4, Joseph E. Williams in Case No. 7-CA-1221-5, Melvin L. Stanton
in Case No. 7-CA-1221-6, Ernest Williams in Case No. 7-CA-1221-7, and
International Union, United Plant Guard Workers of America and its Amalgamated
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local No. 114, herein called the Union, in Case No. 7-CA-1225, the Regional
Director for the Seventh Region on behalf of the General Counsel of the National
Labor Relations Board, herein called the General Counsel and the Board respec-
tively, issued a complaint alleging that The R. C. Mahon Company, herein called
the Respondent, engaged in unfair labor practices proscribed by Section 8 (a)
(1) and (3) and Section 2 (6) and (7) of the Act. Pursuant to Section 102.33
of the Board's Rules and Regulations-Series 6, as amended, the Regional Director
for the Seventh Region issued an order consolidating cases.
With respect to the unfair labor practices, the complaint alleges in substance
that: (1) Respondent has since 1954 engaged in a continuous course of interference,
restraint, and coercion of its employees in the exercise of their rights guaranteed
in Section 7 of the Act and that the particular acts in furtherance of the effectuation
of Respondent's interference, restraint, and coercion include, but are not limited
to, interrogating its employees concerning their union membership, sympathies,
and activities, and the union membership, sympathies, and activities of other
employees, and urging, persuading, threatening, and warning employees by threats
of discharge and other reprisals to refrain from assisting, becoming members of,
or remaining members of, the Union; (2) Respondent laid off, discharged, and/or
terminated the employment of Arthur Bussel and Edmund Warznie on December 3,
1954, and Claude V. Peters on December 4, 1954, and has failed and refused to
recall, reinstate, or reemploy said employees because they and/or other employees
joined and assisted the Union in its organizational activities and engaged in other
concerted activities protected under the Act, and refused to abandon such concerted
activities and membership in, and activities on behalf of, the Union; (3) Respondent
on or about varying dates between December 3 and 31, 1954, closed its plant-
protection department and subcontracted the work thereof, and laid off, discharged,
and/or terminated the employment of all plant-protection employees including, but
not limited to, Arthur Bussel, Edmund Warznie, Claude V. Peters, Harry Stonkoff,
Andrew Fortune, Mathew Gurjack, Albert J. Range, Edward Schmidt, Joseph Wil-
liams, Melvin L. Stanton, Ernest Williams, Fritz G. Jansen, Louie B. Phillips,
Alexander St. Denis, Walter A. Jazowski, and Rudolph Franson 1 and has failed
and refused at all times since such layoff, discharge, and/or termination to recall,
reinstate, or reemploy the said employees in their former or substantially equivalent
positions, for the reason that a substantial number of such employees joined and
assisted the Union in its organizational activities and engaged in other activities
protected under Section 7 of the Act; and (4) by the acts set forth above, Respondent
discriminated and is discriminating, and engaged in and is engaging in, unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act.
The Respondent's answer duly filed admitted the commerce and various other
allegations of the complaint, but denied the commission of any unfair labor prac-
tices. Further, it admitted that Rudolph Franson was, at all times material hereto,
chief of plant protection, but as to whether or not he was a supervisor within the
meaning of Section 2 (11) of the Act, it neither admitted nor denied the same,
pointing out that while Franson was employed by Respondent as chief of plant
protection, he was considered to be a supervisor, but that since the termination
of such employment and the beginning of the Board's investigation of the charges
filed herein, Respondent on advice of counsel doubts that he ever had or exercised
such authority and responsibility as to have constituted him a supervisor within
the meaning of the Act, and specifically denied that he had any authority to repre-
sent or speak for the Respondent on, or to exercise any judgment in connection with,
Respondent's • labor relations policies. The answer affirmatively averred that Re-
spondent's discontinuance of its plant-protection department as of December 31,
1954, and its undertaking by a contract made earlier in December 1954 with an
independent agency to obtain plant-protection services as of January 1, 1955, which
had formerly been provided by its own plant-protection department, was a sound
business and economic decision which it had every right to make without regard to
the organizational or other activities of its former plant-protection employees. The
answer also alleged affirmatively that Respondent's decision to terminate its plant-
protection department and its announcement of that decision to all plant-protection
employees, and its contract for the supply of plant-protection services by an inde-
pendent agency, were all made weeks prior to any claim of representation for
the plant-protection employees; further that nothing in the Act prevents or precludes
any employer from making sound business and economic decisions in the operation
I The complaint was amended at the hearing to include the name of Franson as an
alleged discharged employee if it was not found that Franson was a supervisor within
the meaning of the Act.
THE R . C. MAHON COMPANY 1551
of its business solely because certain employees affected by such decisions may have
been engaged in an organizational campaign at the time of the decision . In addi-
tion the answer alleges that Respondent recognizes and collectively bargains with
numerous unions representing numerous appropriate units of its employees and
that it has never to its knowledge interfered with, restrained , or coerced its em-
ployees in the exercise of rights guaranteed under the Act. Lastly the answer
alleges the absence of any demonstrable antiunion animus in the past as well as
its long freedom from any charges of unfair labor practices in its dealings with its
employees and their representatives in support of its denial that its termination
of its plant -protection department and the termination of employment of plant-
protection employees were motivated by, or in furtherance of, an intention and/or
desire to discourage union membership and/or unlawfully to discriminate against
any employee and/or otherwise to engage in any unfair labor practice within the
meaning of the Act.
All parties were represented at the hearing and were afforded full opportunity
to be heard, to examine and cross -examine witnesses , to introduce relevant evidence,
to argue orally , and to file briefs . During the course of the hearing the Respondent
moved to dismiss the complaint for various reasons. These motions were either
denied or taken under advisement and are disposed of herein . Opportunity was
afforded all parties to argue orally upon the record at the close of the case, and to
file briefs and proposed findings and conclusions . Briefs were filed by the parties
which have been duly considered. Upon the entire record in the case, and from
my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE R. C. MAHON COMPANY
The R. C. Mahon Company is a corporation organized and existing under the
laws of the State of Michigan with its principal office and place of business in De-
troit, Michigan , where it is engaged in the operation of a steel products manufac-
turing plant and is engaged in the fabrication and erection of steel and metal
products . In the course and conduct of its business operations , Respondent annually
causes large quantities of materials to be shipped to its Detroit plant in interstate
commerce from points located outside the State of Michigan and causes large
quantities of products produced by it at its Detroit plant to be shipped from said
plant in interstate commerce to States other than the State of Michigan. During
the calendar year 1954, which is representative of all times material herein, Re-
spondent purchased goods valued in excess of $500,000 from points located outside
the State of Michigan and caused said goods to be shipped 'in interstate commerce
directly to its plant at Detroit , Michigan . Respondent, during the said representative
calendar year 1954, manufactured , fabricated , processed , and caused to be shipped
directly in interstate commerce from its Detroit plant to points located outside the
State of Michigan , products valued in excess of $500 ,000. Respondent admits and it
is found that it is engaged in interstate commerce within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
International Union, United Plant Guard Workers of America and its Amalga-
mated Local No. 114 are labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
George McKeough, Respondent 's personnel manager, testified that in 1946
Respondent was still in the process of completing its new building on Eight Mile
Road in Detroit , and was conducting most of its operations at its Mt. Elliott Street
plant, referred to as the main plant. While Respondent did not maintain a plant
protection department as such , at that time , it employed 3 men at the main plant
and 2 men at the Eight Mile Road plant who were either watchmen or combina-
tion watchman-janitor. McKeough testified further that because of Respondent's
expansion program he did not have the time to personally oversee the details of the
watchmen service and Rudolph Franson was hired in or about May 1946 as the
chief to organize a more orderly protection service. Also as a result of its expansion
program, Respondent in 1947 hired Joseph McNally as assistant personnel manager
in charge of shop employment and plant protection.2
2 McNally was a retired inspector of the city of Detroit police department.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From that time forward Respondent increased the complement of its plant guards.
In April 1949 after a Board-conducted election the Union was certified as the
exclusive bargaining representative of Respondent's plant guards in Case No.
7-RC-413. The record does not reveal that a collective-bargaining agreement was
ever arrived at between the parties.3
By 1953 all of Respondent's operations had been moved to the Eight Mile Road
plant. During 1953 Respondent's plant-protection service consisted of a minimum of
15 and a maximum of 18 plant guards, a sergeant and 4 guards on each of the afternoon
and midnight shifts and Chief Franson and 4 guards on the day shift. Several of the
plant guards including Mathew Gurjack, Ernest Williams, and Melvin Stanton
testified that they received assignments and instructions and turned in daily reports
to Chief Franson. The record clearly establishes that Chief Franson responsibly
directed plant guards and sergeants in the performance of their duties and exercised
independent judgment in so doing. Furthermore it is clear from the record that
Chief Franson was consulted in connection with the hiring of new plant protection
personnel4 and made recommendations which were acted on by higher manage-
ment officials regarding the promotion, discipline, and discharge of plant guards.
Chief Franson's rate of pay in 1954 was $1.92112 per hour, as compared with the
sergeants' rate of $1.821/2 per hour and the guards' rate of $1.761/2 per hour. I find
that at all times material herein Chief Franson was a supervisor within the meaning
of the Act.
Respondent's Economic Position in 1954
Cornelius Alles, presently assistant treasurer of Respondent and its chief account-
ant during 1954, testified that the trend of Respondent's business during this period
was down. He testified that booked orders are a guide to what is coming in the
future for the shops to work on. In this regard, Respondent's booked orders for 1953
totaled approximately $44,000,000 whereas for 1954 they totaled less than $30,-
000 ,000. For the first quarter of 1953 the booked orders were approximately
$14,000,000 and they dropped continually until the third quarter of- 1954 when they
totaled just over $4,000,000.
A result of this downward trend in booked orders was the institution of an appro-
priations procedure whereby top management had complete knowledge of all
expenditures and had the opportunity to approve or disapprove expenditures before
they were made. Another result was a curtailment of expenses. Alles testified
that Respondent discontinued consultant plant engineers services resulting in a
savings of $3,000 per month; selling expenses were decreased 11 percent; administra-
tive expenses 20 percent; general manufacturing, production, and erection overhead
expenses 30 percent. The clerical office payroll was some $25,000 to $30,000
less than in 1953 through the elimination of personnel. The executive payroll was
reduced about 10 percent in 1954.
Alles testified further that beginning in 1953 he submitted to R. C. Mahon, presi-
dent of Respondent, at the latter's request, figures on the cost of operating the plant-
protection department and continued to do so thereafter.
McKeough testified that several years prior to 1954 and in 1954, he discussed
with Harry Lowther, secretary-treasurer of Respondent, the possibility of a change
from Respondent employing its own plant-protection department to contracting for
such services. Such discussions arose about the time increases in pay were made
for plant-protection personnel .5
James Cox, a partner in the firm doing business as Associated Patrol Service,
herein called Associated, whose company furnishes plant guard services under
contract to manufacturing plants, testified that in May 1953 he solicited the Re-
spondent's plant-protection business. He talked with Lowther,6 who asked him
to submit details of Associated's rates and other details regarding a contractual type
of plant-protection service. This, Associated did by letter under date of June 2,
1953. Cox talked with Lowther again in September 1953 and was told that
Respondent "... had just been putting it off and they should get to it." In June
1954, Cox was told that Lowther was ill. In August 1954 Lowther had been back
8 Respondent has been in contractual relations for years with the United Steelworkers
of America, Local 1279, which represents some 800 to 1,100 production and maintenance
workers at the Eight Mile Road plant. As a member of various trade associations,
Respondent also has collective-bargaining contracts with A. F. of L. craft unions.
4In several instances new plant guards were hired by McNally without consultation
with Franson.
5 These occasions were usually when increases were being passed out following the
settlement of United Steelworkers agreements.
O Lowther passed away before the date of the hearing herein.
THE R. C. MAHON COMPANY 1553
in the plant only a short time and was tied up with other matters, therefore Cox
was unable to see him.
Alles testified that in October 1954 Respondent retained a consultant industrial
engineer to assist it in getting better control of the cost in the structural steel shop
because they were running $20 to $50 a ton more in cost than structural fabrication
was selling for at that time. A number of employees were laid off. However, when
Respondent found that in order to regain control of cost it would be necessary to
start up anew, it shut down the structural shop completely on November 19, 1954?
Alles testified that it was expected that the structural shop would be down for
approximately 6 weeks.
The Inception of Union Organization; Interrogation of Employees
Arthur Bussel, a plant guard in Respondent's employ from August 1953 until
his termination on December 3, 1954, testified that as a result of discussion among
the plant guards regarding union organization, he obtained some union application
cards and on or about Thanksgiving Day (November 25), 1954, he handed them
out to the men on the night shift (10 p. m. to 6 a. m.) after they went off duty and
outside of the gate.
Melvin Stanton, a plant guard, testified that Bussel gave him a union application
card with the remark, "Here is a souvenir for you."
Ernest Williams, a plant guard, on the day shift, testified that when he arrived
for duty at the front gate on or about December 1, Bussel was there, gave him two
union application cards and asked him to complete them and send them into the local.
Williams gave one of the cards to Schmidt
Mathew Gurjack, a plant guard on the 2 p. m. to 10 p. m. shift, testified that on
or about November 28, as he was leaving Respondent's plant and was outside the
gate, Bussel gave him several union application cards saying "Here you can do what-
ever you please with it."
The record reveals that only several of the union application cards distributed
by Bussel were signed by the men and mailed to the union office. Moreover, Bussel
testified that other than his distribution of the union application cards he did not know
of other union activity among the Respondent's plant guards.
Gurjack testified that upon reporting for work in the guard house at 2 p. m. on
November 30 he told Chief Franson that the plant guards had an opportunity to join
the Union. He also told the chief that Bussel gave him some union application
cards on November 28 outside of the plant gate while he was on his way home.
Franson asked to see the card but was told by Gurjack that it was at home. Franson
later requested Gurjack to get the card for him and when the latter refused to go home
for it, Franson asked him to place the card in his mailbox at home and he (Franson)
would pick it up on his way to work the following morning. Gurjack complied with
Franson's instructions and on December 1 was told by Franson that he picked up
the card and gave it to McNally.
McNally admitted that he requested Franson to try to obtain the union application
card from Gurjack after he learned from Franson that cards had been distributed to
a number of the plant guards by Bussel. McNally testified that he gave the card
to Lowther and also informed Lowther that it was the card which Bussel had given
to Gurjack.
Shortly after the above-noted conversation, Chief Franson again spoke to Gurjack
and inquired if the latter knew whether the plant guards had sent the applications
for membership to the Union. Gurjack told Franson he did not know but that he
and plant guard Peters had been talking over the question of joining the Union and
that Peters expressed the thought that it would be a good idea to join the Union
as it would afford them a little protection.
Ernest Williams testified that on or about December 3 he was approached by
Chief Franson who asked "What about these cards? Do you know anything about
them?" Williams denied any knowledge of the union cards.
The Transfer of Bussel; the Terminations of Bussel, Warznie, and Peters
As heretofore noted McNally gave Lowther the union application card which
Chief Franson had picked up at Gurjack's home, and also informed Lowther that
Russel was the plant guard who had been distributing the cards.
7 The record does not reveal the number of employees laid off. Alles testified that
when Respondent was building a heavy bridge, 300 people worked in the structural shop.
If it was working in lighter members, it would take 450 people to man the shop to
capacity. When building cranes, there were as many as 600 to 650 men in the shops.
450553-58-vol. 118 99
1554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Franson testified that several hours after he gave McNally the card on December 1
he was instructed by McNally to transfer Bussel from the night shift to the day
shift where he could be watched . McNally testified that Bussel was transferred to
the day shift on orders from Lowther which he (McNally ) passed on to Chief
Franson. McNally testified further that he instructed Franson "to keep his eye" on
Bussel in order to ascertain if he was distributing union cards or soliciting on Re-
spondent 's time. Franson , according to McNally, said he would see what Bussel
was doing .8 Other than these instructions regarding Bussel , McNally testified that
he never directed or authorized Chief Franson to investigate union activity in
Respondent 's plant.
Franson testified that shortly before or shortly after noon on December 3 while
he was in the personnel office, McNally came down the hall and gave him instruc-
tions to lay off Bussel that day. McNally , according to Franson , told him to note
as the reason on the termination slip "reducing the force."
Franson testified further that later in the afternoon of the same day, he again
happened to be in the personnel office when McNally told him to lay off plant guard
Warznie "so it would not look so obvious ," but to note the reason on the termination
slip as "reducing the force."
Bussel and Warznie were terminated on December 3. The termination slips
filled out and signed by Chief Franson set forth "reducing force" as "reason for
leaving." In addition Franson noted that the employees would not be rehired and
that their quality of work was "fair."
Franson testified that he was in the personnel office on the morning of December 4
when McNally asked , "Chief, did you hear any more about the cards , or anything?"
Franson replied , "No," but went on to tell McNally that the only thing he heard from
Gurjack was that plant guard Peters told Gurjack to send his signed application card
into the Union because that was the only way they could get security at Respondent's
plant. Franson also testified that later that day McNally told him "that Mr.
Lowther said that if Mr . Peters said that to Mat to lay him off too." Since Peters
worked the afternoon shift Franson left instructions with the sergeant to let Peters
work his shift but that he was to be terminated as of the end of the shift.9
McNally testified that on December 2 he received orders from Lowther to reduce
the plant-protection force by three plant guards and that he also was ordered to
terminate Bussel, Warznie, and Peters effective at the end of their tour of duty
December 3.10. McNally testified that he transmitted the orders to Franson. He
categorically denied telling Franson that Warznie was being laid off "so it would
not look so obvious." He also denied that Franson said anything to him about
Gurjack's conversation with Peters. McNally was unable to account for the fact
that Peters was not laid off until December 4, in the face of Lowther 's orders that
all three men were to be terminated on December 3.
The General Counsel notes in his able , well-reasoned brief that the only factual
issues requiring resolution to decide this case are those set forth above. In arriving
at my resolution of credibility in these instances , I have attached great weight
to the impressions and reactions which are received from a careful and searching
scrutiny of the witnesses while testifying on the stand . In addition after a careful
reading and rereading of the record , I have considered the inconsistencies in the
testimony of Franson , his reluctance to disclose the true facts , his bickering and
attempts to fence with Respondent 's counsel on cross-examination , and his lack
of candor . I have the feeling after listening to Franson 's testimony and observing
him that he was obsessed with his own importance as the "Chief "; that he harbored
an animus against McNally which kept building up over the years and that his testi-
8 Respondent attempted to prove through McNally that it had a rule against solicitation
on company time. It does not have a written rule as such nor does it instruct newly hired
employees that they may not solicit for any purpose on company time . McNally testified,
however , that he construed article XI of the General Shop Rules and Regulations "un-
warranted interference with production in any manner," which appears in the printed
booklet "Your Job," and which is distributed to employees when they are newly hired, as
a rule against solicitation on company time. McNally testified that when such matters
are brought to his attention he orally instructs the employee that no solicitation is per-
mitted on company time . I find under the circumstances herein that Respondent did not
have in existence a valid rule against solicitation on company time.
8 The termination slip for Peters in evidence , completed by Franson , shows that his
last day worked was December 4, that the reason for leaving was "reducing the force,"
that he would not be rehired , and that his attitude and nua .lity of work was "fair."
18 December 3 was a Friday. McNally testified that Friday is the end of the workweek
and layoffs usually take place on that clay.
THE R . C. MAHON COMPANY 1555
mony regarding the above-noted incidents was his method of getting back at the
Respondent. On the other hand, McNally impressed me as an honest and sincere
witness. He testified in a calm, assured, and specific manner. He was forthright
in his admission that he instructed Franson to obtain the union application card
from Gurjack after he was informed that Bussel had been distributing cards and had
given one to Gurjack. Under all the circumstances I am unable to credit the testi-
mony of Franson regarding the events set forth above where such testimony is in
conflict with McNally's testimony. I find based on McNally's testimony that Bussel
was transferred to the day shift upon Lowther's orders so that management could see
if he was distributing union application cards or soliciting on company time and that
the plant-guard force was ordered reduced by one man per shift by the terminations
of Bussel, Warznie, and Peters effective as of the end of their tours of duty December
3, and with no other comment by McNally.
The Changeover to Independent Contractor System of Plant Protection
On or about December 3, Cox of Associated Patrol again called on Lowther,
Cox testified that Lowther asked him to restate the rates quoted in Associated's
prior proposal. Cox testified also that Lowther called McNally into the meeting
and Cox then repeated the rates charged by Associated, their methods used, and
some of the facts concerning the service supplied to other companies. In the
course of this discussion Lowther requested Cox to eliminate the overtime item
which Associated had in its first proposal and then asked Cox to submit another
proposal. This, Associated did by letter dated December 4. Cox testified that
the complete cost of the plant-protection service for Respondent varied between
the June 2, 1953, and the December 4, 1954, proposals in that the first proposal
contemplated overtime billing by Associated for work by any single guard or any
series of guards beyond a 48-hour week, whereas in the December 4 proposal
there was not to be any bill for overtime of any kind. The second proposal, accord-
ing to Cox, reduced the cost to Respondent of approximately $400 per month.
McNally testified that around December 4 he received orders to obtain bids
from other plant-protection companies for furnishing service to the Respondent.
McNally contacted several companies, inquired about their service and asked them
to submit bids.il A number of replies were received which McNally gave to Lowther.
On December 6 McNally was handed a memorandum by Lowther concerning
the subject of plant guards, with instructions that it be posted in the guard gate-
house where the plant guards could see it. The memorandum advised that arrange-
ments were being made between Respondent and a firm engaged in the plant-pro-
tection business to contract out such work; that the outside concern would furnish
its own personnel; and Respondent's plant guard employees would cease their
employment with Respondent as of December 31, 1954. This notice remained
posted for 1 day and Respondent's plant guards who testified at the hearing therein
acknowledged that they saw it. With the exception of this notice which was type-
written and in the form of interoffice correspondence, no other notice of any kind
was given to Respondent's plant guards concerning the termination of their services.
On or about December 10 plant guards Ernest Williams and Schmidt talked with
Lowther in the latter's office about the change in the plant-protection service.
They testified that they inquired of Lowther if he had any complaints against Respond-
ent's plant guards. Lowther answered that he had none and that the changeover was
"just a matter of economy." Williams and Schmidt asked if the plant guards could
not meet Respondent's requirements by taking a salary cut. Lowther replied in the
negative and noted that the changeover "had gone a little far." Lowther told the
men that Respondent had solicited bids for the plant-protection service from com-
panies engaged in such business and the lowest bid received was $1.75 per hour.iz
Williams remarked, "Well, we can't beat it," and they left.
On December 10 Respondent asked Cox to come in for a conference in Lowther's
office on December 11 and to bring Associated's certificate of insurance coverage
in connection with rendering plant guard service.13 At the December 11 meeting
"McNally testified that in August 1954 the McInerney Detective Agency solicited
Respondent's plant-protection business, talked with him and followed it up with a letter
setting forth its service and its rates which incidentally were the same as those sub-
mitted in Associated's second proposal. McNally turned this letter over to Lowther.
12Plant guards pay was $1.7G1l per hour plus certain benefits, vacations, uniforms, etc.
13 The proposal submitted by Associated included in the per hour rate the furnishing of
public liability, property damage, and workmen's compensation insurance. In addition
each plant guard was covered by a surety bond.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the details of Associated's bid and its prospective mode of operation were dis-
cussed. Associated was advised that its bid was accepted and a memorandum of
understanding between the parties was drafted, whereby among other things
Associated was to furnish a plant-protection staff consisting of 15 men; 14 it was
to furnish a list of employees for Respondent's approval and was free to hire any
of Respondent's plant guard personnel; 15 and to begin operations January 1, 1955.
Cox testified that the understanding between the parties was not for any specific
period of time and on the basis of a gentlemen's agreement any party could give
the other notice of its desire to terminate the relationship.
In a letter dated December 28, the Union advised Respondent that it had been
designated by a majority of the plant guards as their bargaining representative and
indicated its desire to meet with Respondent and institute negotiations toward a col-
lective-bargaining agreement. Respondent replied that an independent company was
to handle its plant protection starting midnight December 31 and that all persons
concerned had been notified of the change.
On December 31 Respondent's 12 plant guards and Chief Franson received termi-
nation slips and its plant-protection department was eliminated.
Conclusions
It is uncontradicted in the record as I have found hereinabove that Chief Franson
in a conversation with Gurjack inquired whether the plant guards had sent the ap-
plications for membership to the Union. In a like manner, Franson questioned
Ernest Williams about the union application cards and if he knew anything about
them. By these acts of interrogation Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8 (a) (1) thereof.
We turn next to a consideration of the allegations in the complaint that Respond-
ent discharged and/or terminated the employment of Bussel and Warznie on De-
cember 3, 1954, and Peters on December 4, 1954, and on December 31, 1954, closed
its plant-protection department, subcontracted the work thereof, and terminated
the employment of its remaining 12 plant guards all in violation of Section 8 (a) (3)
of the Act.
It is the position of the General Counsel as set forth in his brief that Respondent
abolished its plant-protection department and discharged its plant guards for the
purpose of defeating the organizational activity of its employees and the exercise
of their organizational rights.
True, as the General Counsel points out in his brief, the reduction in force in the
plant-protection department did not occur when the structural steel shop was closed
down in November, but did come 2 weeks later and only days after the Respondent
bec.me aware of the union activity among the plant guards. And indeed, it in-
cluded among the laid-off employees, Bussel, the only plant guard regarding whom
it had knowledge of union activity and who had been transferred from the night
shift to the day shift so he could be watched.
With respect to the reduction in force of plant guards, the Respondent adduced
evidence which is uncontradicted in the record, that in 1954 it set out on a program
to curtail administrative expenses and overhead, because its booked orders in 1954
fell far below its record of booked orders in 1953. Among other possibilities for
reducing overhead, the cost of operating the plant-protection department came in
for discussion, particularly since Respondent had been solicited by independent com-
panies offering plant-protection services with possible savings to the Respondent.
As part of its continued effort to bring its cost down to meet competition Respond-
ent temporarily shut down its structural steel plant on November 19. The General
Counsel adduced testimony from several plant guards that the shutdown increased
the workload of the plant guards. I am convinced however from the testimony of
Cox, which I credit, that it is more difficult to cover a building from the plant-pro-
tection angle when it is working rather than when it is shut down. Moreover, both
Franson and McNally made it clear that gate duties are a major consideration in
the determination of the number of men needed for plant-protection duties. The
evidence reveals that when the structural steel shop is shut down, not as many plant
14 It will be recalled that Respondent's plant-protection staff was reduced in force on
December 2 from 15 to 12 men.
15 Several of Respondent's plant guards including Franson and Gurjack were hired by
Associated and assigned to Respondent's plant.
THE R. C. MAHON COMPANY 1557
guards are used to man the gates. It is also clear from the record that Saturdays,
Sundays, and holidays, when either shops were closed down or plant operations were
at a minimum, were the days always selected, among others, for scheduling days off.
McNally testified credibly that the selection of the three men to be reduced in force
was made by Lowther. There is no evidence that Lowther consulted anyone re-
garding this matter. Alles testified that Lowther was familiar with plant guard
operations and kept separate card records in his office on all personnel. Although
it does not appear that Respondent had a seniority policy in layoffs, the 3 men
selected for the original layoff were among the 6 lowest in the point of view of length
of service.16 It is also worthy of note that the termination slips of Bussel, Warznie,
and Peters filled in by Chief Franson reflect "would not rehire" and only "fair" at-
titude and quality of work, whereas the termination slips of all other, plant guards
terminated on December 31 when Associated took over reflect "would rehire" and
"good" attitude and quality of work.
The timing of the reduction in force and the inclusion of Bussel has given me cause
for thought. It is possible, of course, that the reduction in force was decreed by
Respondent at this particular time to defeat the organizational activities of the plant
guards and at the same time rid itself of the only guard it knew to be active in the
attempt at organization. Given the quite adequate basis however, presented by the
Respondent, that it was in the process of curtailing expenses and overhead and had
been considering its plant-protection department as a source for savings, and that
Bussel had rendered only "fair" quality of work, is there a sufficient basis, based
upon the record as a whole, upon which a dispassionate mind can ripen this possi-
bility into a finding? I believe not. Or put another way-if the state of the record
is such that it permits nothing better than a suspicion of discrimination, the Gen-
eral Counsel has not sustained his burden of proof-there is not substantial evidence
sufficient to sustain a finding of discrimination.
In arriving at my conclusion, I have also considered the fact that other than the
two instances of Franson's questioning plant guards Gurjack and Williams, there is
no evidence of antiunion animus or hostility on the part of Respondent. On the
contrary, as noted previously, Respondent has been in collective-bargaining relation-
ships with unions representing all of its production and maintenance employees over
a long period of time. On the basis of the entire record I find that the General
Counsel has not persuaded me by a preponderance of the substanial evidence that.
Respondent reduced its plant guard force and discharged Bussel, Warznie, and
Peters for the purpose of defeating the organizational activities of its employees.
See Punch and Judy Togs, Inc. of California, 85 NLRB 499; Valencia Service Co.,
103 NLRB 1190.
With respect to the elimination of the plant-protection department and the termi-
nation of the remaining employees therein on December 31, the General Counsel
poses the following questions among others: Why did not the Respondent accept the
McInerney offer in August 1954 which was practically identical with the offer Asso-
ciated made and which was accepted on December 11, 1954? Why did Respondent
wait until it learned of its employees' organizational activities before it changed over
to the independent contractor system of plant protection?
Alles, McKeough, and McNally testified credibly that top policy decisions in
regard to personnel matters were generally made by Lowther individually or in
consultation with Mahon. They also testified that even though there were discussions
during 1954, as heretofore noted, regarding the advisability of contracting out the
plant-protection duties, the decision to do so was made by Lowther on or about De-
cember 3. Both Lowther and Mahon were absent from their duties a great deal
because of illness during the period from June to December 1954.17
The record is also clear that by making the change Respondent contemplated
savings in that it contracted to pay Associated $1.75 per hour per guard and $1.85
per hour for sergeants, which included all overtime, social-security payments, insur-
ance of all kinds, and uniform expense, whereas it was paying $1.761/2 cents per hour
to its guards and $1.821/2 cents per hour to sergeants plus overtime and all other
expenses. Additionally, it is noted that Lowther in conversation with guards Williams
and Schmidt made it clear that the changeover was an economy move.
16 The six plant guards with the least seniority and their dates of hiring were Bussel,
August 10, 1953; Joseph Williams, August 15, 1953; Peters, September 28, 1953; Stanton,
October 19, 1953 ; Phillips, October 4, 1954; and Warznie, October 5, 1954.
17 Both Lowther and Mahon died prior to the opening of the hearing herein.
1558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Other than pointing up the timing of the changeover and the fact that it could
have been made in August 1954 the General Counsel did not adduce evidence 18 to
prove that the Respondent's motive for the change was to defeat the organizational
activities of its employees, and not business and economic as Respondent contended.
The suspicion, if any, created by the timing 19 is not proof and a finding of violation
of the Act cannot be based on suspicion alone. See Valencia Service Co., supra.
Upon the entire record, I am convinced and find that Respondent did not close
its plant-protection department on December 31, subcontract the work thereof, and
terminate the employment of all its plant-protection employees for the reasons
alleged in the complaint.
I have found above that Respondent violated Section 8 (a) (1) of the Act by
Franson's interrogation of Gurjack and Williams. However, in view of the
isolated character of this conduct I find that it would not effectuate the policies of the
Act to issue a remedial order based on such conduct alone. See Bob Morgan Motor
Company, Inc., 106 NLRB 334. It is therefore recommended that the complaint
herein be dismissed in its entirety.
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. The R. C. Mahon Company, Detroit, Michigan, is engaged in and at all times
material has been engaged in commerce within the meaning of Section 2 (6) and (7)
of the Act.
2. International Union, United Plant Guard Workers of America and its Amal-
gamated Local 114 are labor organizations within the meaning of Section 2 (5) of
the Act.
3. The Respondent has engaged in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
[Recommendations omitted from publication.]
18 The General Counsel proved that prior to the reduction in force on December 3, as
heretofore found, Respondent questioned employees Gurjack and Williams about the
union membership cards.
19In view of Respondent's expansive operations, the delay in making its decision with
regard to the plant-protection department does not impress me as much as it did the
General Counsel. The Respondent always had adequate plant-guard protection pre-
sumably its primary concern and there did not appear any imperative need for an immedi-
ate decision in August when the offer from McInerney was received.
Royal Jet Incorporated and United Aircraft Workers, Petitioner
Royal Jet Incorporated and National Union, United Welders of
America, Independent , Petitioner. Cases Nos. 31-RC-4809 and
21-RC-4865. October 7, 1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Floyd C. Brewer and Paul
E. Weil, hearing officers. The hearing officers' rulings-made at the
hearing are free from prejudicial error and are hereby affirmed.
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 [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
118 NLRB No. 214.