The William J. Burns International Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1689 (N.L.R.B. 1962)

WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC . 1689
The William J. Burns International Detective Agency, Inc. and
International Guards Union of America. Case No. 17-CA-
1902. July 30, 1962
DECISION AND ORDER
On April 19, 1962, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report, a supporting brief, and a request for oral
argument.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and brief, and the entire record
in this proceeding, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
(1) The words "A Decision and Order" shall be substituted for the
words "The Recommendations of a Trial Examiner" in the notice. If
our Order is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by substituting the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing
an Order" for the words "Pursuant to a Decision and Order."
(2) Section 2(d) of the Order is amended to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
(3) The following shall be added after said section of the Order:
IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola-
tions of the Act not found herein, be, and it hereby is, dismissed.
i As the record , including the exceptions and brief, adequately sets forth the issues and
the positions of the parties , the request is hereby denied
137 NLRB No. 185.
1690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Robert E. Mullin at a hearing in Omaha, Nebraska, on February 26 and 27, 1962.
The issues presented by the pleadings were whether the Respondent had violated
Section 8(a)(1), (3), and (5) of the Act.' On March 30, 1962, the General Counsel
filed a brief which has been considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, with its headquarters in New York City
and offices in the various States of the United States, is engaged in furnishing guard
services to manufacturing plants and defense installations, including a facility at
Mead, Nebraska, where it has had a series of contracts with General Dynamics
Astronautics (herein, and throughout the record, referred to as Convair). The
Respondent annually furnishes guard services valued in excess of $50,000 to customers
located outside the State of New York and annually furnishes services valued in
excess of $50,000 to customers who, in turn, make yearly interstate shipments of
goods valued in excess of $50,000. During the 12-month period preceding the filing
of the charge herein the Respondent furnished guard services valued in excess of
$50,000 at missile bases and other national defense installations in the State of
Nebraska. Upon the foregoing facts, the Respondent concedes, and I find, that The
William J. Burns International Detective Agency, Inc., is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Guards Union of America, herein called the Union, is a labor or-
ganization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and sequence of events
In a companion case, William J . Burns International Detective Agency. Inc., Case
No. 17-CA-1845 [137 NLRB 1235], the Intermediate Report in which issued
recently, this Trial Examiner found that the Respondent herein had violated Section
8(a)(5) and ( 1) of the Act by unlawfully refusing to bargain with the Charging
Union after the latter had been certified as the majority representative in an appro-
priate unit of the Respondent 's guards2 The Union was certified on July 28, 1961.
Thereafter, the parties met at a series of bargaining conferences , the first of which was
held on September 7. On November 16 the Union called a strike which the Trial
Examiner , in the foregoing report , found was an unfair labor practice strike since
it had been precipitated by the Respondent's unlawful refusal to bargain with the
Union . At the initiation of the strike , the Respondent had 21 guards employed in
the unit . In December , 16 of the strikers sought reemployment and the Respondent
reinstated all except Albert McDaniel.
The latter was secretary -treasurer of Local 43 , the local of the Guards union
which represented the Respondent's employees . In August he was chosen by the
employees as a member of their bargaining committee . Thereafter, McDaniel
actively participated , along with various others, in the bargaining sessions held by
the Respondent and the Charging Union . The General Counsel contends that im-
mediately after McDaniel assumed an active role in the bargaining conferences he
'The orignal complaint was Issued on February 2, 1962, and was based on a charge
filed on December 7, 1961. An amended complaint, issued on February 12, 1962, was
based on an amended charge that was filed on February 8.
20n April 4, 1962 , the Respondent and the Charging Party, on the ground that during
the posthearing period they had reached agreement on the terms of a contract, moved to
dismiss all allegations In the complaints in Cases Nos. 17-CA-1845 and 17-CA-1902, other
than those relating to the discharge of Albert McDaniel. This motion was opposed by
the General Counsel and was denied by the Trial Examiner on April 6, 1962, for the
reasons set forth in the Intermediate Report Issued in Case No. 17-CA-1845.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1691
was discriminatorily assigned less desirable work by the Respondent and that this
conduct led to his constructive discharge in November and the Respondent's dis-
criminatory refusal to reemploy him when it reinstated the other strikers in Decem-
ber. The Respondent denies all these allegations and contends that McDaniel
voluntarily resigned on November 22 and was not reemployed with the returning
strikers because there was no vacancy available. To the facts in connection with
these issues we will now turn.
Albert McDaniel was one of the original guards hired by the Respondent when
it established its office at the Mead facility. Only two other guards with comparable
seniority were still in the Respondent's employ during the fall of 1961. These were
Roland Miller and Bernard C. Siebken. By that time the latter two were lieutenants
on the force and supervisors.3 McDaniel took no part in the organizational activity
that preceded the election of the Guards union as the bargaining representative? He
joined the Union after its certification, became an officer of the local, and was se-
lected by his fellow employees as a member of the bargaining committee. This last
occurred in the latter part of August. Prior to that time McDaniel had been rotated
from one to another of the posts at which the Respondent had its guards stationed.
About September 1, Siebken assigned McDaniel to post No. 1 and told him that there-
after that would be his permanent station .5 This was a very desirable assignment,
for post No. 1 was located in the Respondent's office. The guard assigned there had a
desk adjacent to that of Captain Supernaw and the lieutenant on duty and spent his
time answering telephone calls, manning the radio transmitter, and making out
timesheets. In contrast, all the other guards had walking posts. Some were in the
warehouse areas and others were in various isolated sections. Most of the others
were far removed from the headquarters and all of them were unprotected from
the weather.
On September 7, the union and company representatives met for their first bar-
gaining session. The meeting lasted for 3 hours and many points were covered.
The Respondent was represented by C. E. Hoxie, its division manager from St. Louis,
and Ernest Branam, its branch manager from Kansas City. McDaniel, as one of
the employees on the union committee, took an active part in the discussions and on
various issues contradicted Branam as to his factual data. Early the following week,
Siebken informed McDaniel that, notwithstanding his personal reluctance to do so,
he had been ordered to take the employee off post No. 1. When McDaniel pressed
him for an explanation, Siebken said, "I guess it is something you said at the negotia-
tion meeting." Later that morning, when Captain Supernaw also expressed his
regret at having to reassign McDaniel, the latter asked his captain for an explanation
of the move. Supernaw told him, "Mac, I'm not supposed to tell you. Mr. Branam
says to get you off Post 1 and keep you off, you know too much." 6
In the period from mid-September until November 16 when the strike began,
McDaniel was again rotated from post to post. He occasionally served at post No. 1,
but only on a rotation basis and never again was he permanently assigned to that
station
Branam denied that he had given any order to have this employee removed from
the area of the guard office. According to Branam, he had concluded that there
should be no more standing, or permanent, post assignments and that after the
3 The Respondent's guard force had a captain and three lieutenants The Respondent
conceded that the captain had supervisory authority, but contended that the lieutenants
had only limited functions in this latter respect. From the record it is clear that the
lieutenants made up work schedules, assigned guards to their posts, allowed time off, and
gave orders In addition, Siebken testified that as a lieutenant he hired replacements as
vacancies arose and that he had effectively recommended discharges From the foregoing
it is my conclusion that all of the officer personnel on the Respondent's guard force, the
lieutenants as well as the captain, were supervisors within the meaning of the Act
'The Guards union was not the first labor organization which sought to campaign
among the Respondent's employees. In August 1960 when another union had sought to
enlist the support of the guards on the Respondent's force McDaniel took no part in that
campaign either. At the request of Capt Noel Supernaw and Lieutenant Siebken he
attended one meeting of this group. Subsequent to the meeting Supernaw sought to Inter-
rogate McDaniel as to the names of those who attended and various other aspects of that
meeting The latter, however, refused to do so.
5 This finding is based on the credited, undenied testimony of McDaniel Siebken testi-
fied about this matter but did not contradict the employee's testimony.
6 The foregoing quotations are from the credible , undenied testimony of McDaniel
Both Siebken and Supernaw testified at the bearing, but neither contradicted McDaniel's
version of his conversations with them
1692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first negotiation session he had issued an order to that effect. Branam testified that
this was done because some of the guards had complained that they were not getting
an opportunity to serve at No. 1, the most desirable post. Branam 's testimony as
to the basis for his decision in this regard was not borne out by other facts in the
record . Thus, at the time in question , the Respondent had three shifts of guards
on duty at the Mead facility. McDaniel had been on post No. 1 during the first,
or day, shift . This same post was held by Richard Nelson on the second shift and
by John Carlson on the third shift After the initial bargaining session , McDaniel
was removed from his post , but his counterparts on the other two shifts , Nelson
and Carlson , remained at that same station until the strike began 2 months later.
Supernaw , who sought to corroborate Branam 's testimony , could offer no satisfactory
explanation as to why Branam's purported order to eliminate all permanent post
assignments was not effectuated on the second and third shifts as well as the first.
Branam's testimony , that some of the guards on the first shift had complained that
they were not getting an opportunity to serve on No. 1, was not corroborated by
Siebken. The latter was the lieutenant in charge of the day shift and he testified
that prior to the order in question he had heard no complaints from any guards about
their not having a chance to serve on post No. 1. The latter also conceded that
prior to September 1, when McDaniel was assigned to that post, it had been the
practice to assign that post on the day shift to a particular guard on a regular and
permanent basis.7
From the foregoing facts it is my conclusion and I find that , whereas early in
September McDaniel was assigned to a more desirable post than the other guards
and was assured that it would be his permanent duty station , after the first bargaining
session on September 7, he was relieved of that assignment on orders from Branam
for the reason that in such position he "knew too much ." McDaniel's attempt to
represent the interests of his fellow employees at the bargaining conference consti-
tuted protected concerted activity and the Respondent could not penalize him for
his efforts . The change in his work assignment which the Respondent thereafter
imposed constituted a violation of Section 8(a)(3) of the Act and I so find.
The day after McDaniel was notified by his superiors that he would no longer be
permanently stationed at the guard office, Captain Supernaw questioned this em-
ployee as to whether he had ever applied for employment with Convair, the prime
contractor at the Mead facility . In so doing , he suggested to McDaniel that work
might be available in the motor pool for that company . The employee pointed out
that to be eligible for employment with Convair he would need a release from Burns,
that he had known of cases in which that had taken from 30 to 60 days, and that
he had no desire to be out of work that long while awaiting a new jobs Supernaw
assured him , however, that his fears were groundless for he was certain that Mc-
Daniel could "get processed tomorrow and work the next day " 9 The employee
concluded the discussion by telling Supernaw that in the event he decided to ter-
minate his employment with Burns he would give him several days' notice.
Subsequent to McDaniel 's transfer from post No. 1 he continued as a member of
the Union 's bargaining committee and attended all of the negotiation meetings.
On November 16, the Union began the strike which in Case No . 17-CA-1845 was
found to have resulted from the Respondents ' refusal to bargain in good faith with
the employees ' representative . McDaniel joined with his fellow workers in the
4 Branain also testified , in further explanation of his order that post No 1 should be
rotated, that at the bargaining session on September 7, McDaniel had complained that at
this station he was required to perform the duties of an "acting lieutenant ." According
to Branam , he determined that such additional duties should not be performed by the
guard on No . 1, and that this was one of the further reasons why he ordered rotation
This testimony was contradicted by McDaniel More significantly , however, Branam's
testimony was not supported by evidence in the record from the Company's assignment
sheets . From the latter it was clear that on Saturdays and Sundays it was the frequent
practice to have one of the guards on duty as an "acting lieutenant " in charge of the
others At the same time , however, another guard would be on duty at post No I The
foregoing conflict between the testimony of Firanam and the Respondent ' s own records is
a further reason for my conclusion that as to this matter McDaniel was the more credible
witness.
s Burns was a subcontractor for Convair . The latter , as the prime contractor, re-
quired adherence on the part of all the subcontractors to the aforesaid rule in order to
eliminate "job-pirating" by any of the contractors engaged at the Mead facility
O The quotation and the foregoing findings in this paragraph are based on the credited,
undenied testimony of McDaniel
WILLIAM J. BURNS INT 'L DETECTIVE AGENCY, INC. 1693
picketing which ensued . On November 22, he went to the guard office and told
Captain Supernaw that he wanted to resign . The latter accepted the resignation
and immediately gave McDaniel a release to seek employment with the other defense
contractors on the base . McDaniel did not, however , receive his last salary check,
for that was withheld pending the return of his uniforms . This last was not ac-
complished until the latter part of December.
On December 9, the union leadership had the strikers initiate efforts to secure
reemployment . On that day, McDaniel and several others visited the guard office
and told Lieutenant Siebken that they wanted to return to work. When Siebken
asked McDaniel if , after having submitted a resignation earlier, he was now asking
to return to work , McDaniel answered him in the affirmative . Siebken then told
the guards that he would have to contact Branam in Kansas City . On December 11,
the same group returned to Siebken 's office but the latter suggested that they return
on December 13, since he had not yet heard from the Respondent 's branch manager
in Kansas City. On the latter date, when McDaniel and others reported to Siebken's
office, Siebken had McDaniel join him in a telephone conversation with Branam.
During the course of this conversation, Branam stated that he understood the men
wanted to return and that he would be at Mead the following day. To McDaniel,
however, he stated "McDaniel , you know . . . you are out."
On the morning of December 14, McDaniel , accompanied by the others who had
been on strike , returned to the guard office. This time McDaniel handed to Siebken
a letter to the Respondent , in which the Union requested that 14 named members,
including McDaniel, be returned to their jobs at the Mead Facility. The letter
concluded with the statement:
We wish to inform you these employees of yours stand ready and willing to go
to work as formerly stated on Sat , Dec. 9, 1961.
The letter was signed by McDaniel as secretary -treasurer of Local 43 of the Guards
union.
Later that morning Branam met with approximately 12 guards who were awaiting
his arrival . Branam was accompanied to the meeting by J. N. Freeman , industrial
relations director for Convair . Branam originally excluded McDaniel from the
room, but shortly after the meeting began some of the guards present protested that
if Freeman was to remain then McDaniel should be admitted. Branam acquiesced
in this request and thereafter the latter joined the group . Branam told the men
that he was not dealing with them collectively or as an organized group , but only as
individuals , that he understood they wanted their jobs back, that the Company had
had to undergo some retrenchment of its force, as a result of which only 15 jobs
were open and that the Company would fill these jobs on a seniority basis. Branam
then told the men that those who wanted to return would have to sign a statement
which he had ready for them . This read as follows:
The undersigned, who have been on strike since November 16, 1961, at the
Mead Facility, hereby make an unconditional voluntary application for return to
work for Wm . J. Burns International Detective Agency Incorporated at pay
rate in effect when the employee went on strike. Such pay to be for period
from and after actual return to work.
At this time McDaniel asked Branam if the men had to sign the foregoing statement.
The latter answered in the affirmative. McDaniel then stated that the employees
had already signed such a document and at this point he offered Branam a copy
of the letter which is referred to above and which he had earlier that day presented
to Siebken . Branam, however, refused to accept the latter document and told the
men that they would have to sign the statement which the Respondent had prepared
if they wished to return to work. All of the guards present , with the exception of
McDaniel , were permitted to sign the latter instrument . Early in the meeting,
Branam pointed out that the benefits of the meeting would not pertain to McDaniel
because he had terminated . McDaniel conceded that when the Respondent ' s official
made the foregoing comment, he acknowledged before the men that Branam had
told him the same thing the day before during their telephone conversation.io
10 Branam testified that McDaniel further conceded that lie had "voluntarily" terminated
his employment McDaniel denied that he had used the word "voluntary" There was
little corroboration for Branam's testimony to the foregoing effect. Among the numerous
witnesses who testified as to this incident was Alfred J. Hroban, one of the guards pres-
ent who appeared at the hearing in the instant case for the Respondent. Ilroban's testi-
mony impressed me as that of a trustworthy witness whose account accurately sum-
1694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day, the Respondent reinstated 15 strikers. Other than McDaniel,
no striker who sought reemployment was rejected. Nor was McDaniel offered
reemployment subsequent to December 15, notwithstanding the fact that other
replacements had to be hired. Thus, on December 16, Richard D. Triplett, one of
the strikers, returned to work, stayed at his post for 2 hours, and resigned to accept
employment with another defense contractor at Mead. Shortly thereafter, John
Carlson, another striker who had been reinstated, died. Sometime later, Edwin
Yocum, also a reinstated striker, was promoted to lieutenant and a replacement had
to be hired for his post. The Respondent, however, made no effort to return
McDaniel to its employment. None of the Respondent's supervisory force had any
adverse criticism of McDaniel in the performance of his duties. Supernaw described
him as a "very good" employee. Branam testified that McDaniel had been an
excellent guard who at one time had been recommended to him as the next lieutenant.
Siebken described McDaniel's work as "outstanding."
The General Counsel contends that the Respondent, by its antiunion course of
conduct, caused McDaniel to terminate his employment on November 22, thereby
constructively discharging him in violation of the Act. The General Counsel further
alleged that the Respondent discriminatorily refused to reemploy McDaniel on and
after December 13, 1961. These allegations are denied by the Respondent. Accord-
ing to the latter, the employee voluntarily terminated his employment on Novem-
ber 22 and when he returned to seek reinstatement on December 14, there were no
openings available.
The General Counsel's contention that McDaniel's resignation on November 22
was actually a constructive discharge must rely in large measure upon that employee's
discriminatory reassignment from post No. 1 and the effect of that treatment upon
the individual.ii This incident occurred in mid-September. As found earlier, the
Respondent's conduct at that time constituted unlawful discrimination against this
employee. The latter, however, did not seek to resign until over 2 months later.
The Respondent's discriminatory treatment of McDaniel in September may have
had a substantial bearing on the tender of his resignation in November. On this
record, however, the lapse of over 2 months between the time of the initial incident
and the proffered resignation preclude a finding that the Respondent's conduct com-
pelled McDaniel to resign. I shall, therefore, recommend that this allegation in
the complaint be dismissed.
There is more, however, to support the General Counsel's alternative contention
that McDaniel was discriminatorily denied reemployment on and after December 13.
As set out above, on December 9, McDaniel, accompanied by several of the other
guards who were then on strike, went to the Respondent's office to request their
return to work. During a discussion with Lieutenant Siebken on this occasion,
McDaniel answered in the affirmative when asked whether, nothwithstanding his
earlier resignation, he was now seeking reemployment. Thereafter, on December 14,
McDaniel presented, on behalf of the union members, a written request for the
reemployment of 13 of the other employees and of himself. This letter was originally
given to Siebken. Later that day, during the meeting which Branam held with the
strikers, McDaniel proffered a copy to the branch manager but the latter refused to
accept it Throughout the meeting Branam stated, on several occasions, that
because McDaniel had submitted his resignation he would not be considered for
further employment
marized the conversation in question Thus, this witness, when asked the following
questions, gave the answers which appear below:
Q. What, if anything, was said by Mr. Branam to Mr. McDaniel that afternoon?
A. Well, Mr McDaniel came in and he asked for his job back and Mr. Branam
says he didn't have a job for him
Q Did Mr. Branam say why?
A He asked him if he was terminated and he said, "Yes "
s s r s a ► e
Q. Was anything said by Air McDaniel about any terms on which he terminated
his job?
A. No.
n It is true that the General Counsel also offered evidence as to an occasion in October
1961 when McDaniel was requested to clean out a trailer truck and perform work that
was more consonant with the duties of a janitor than a guard On the other hand, at
least one of the other guards had had to do this same job on one other occasion In any
event, it is my conclusion that to clean out the trailer was not so demeaning of McDaniel's
status as a guard that it can be said to have caused his involuntary resignation the
following month
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1695
On the foregoing facts, even assuming that McDaniel had severed his employ-
ment by the resignation which he submitted on November 22, it is apparent that
by his actions on December 9 and 14 he sought reemployment with the Respondent.
Branam testified that he told the strikers that 15 jobs were open and that they would
be returned in accordance with their seniority. On December 16, the very day that
the strikers returned to work, one of the returnees quit his job 2 hours after report-
ing for duty and a replacement had to be secured. Shortly thereafter the Respondent
had to hire two additional employees to replace one of the guards who died and
another who was promoted, but at no time was McDaniel offered reemployment.
The Respondent's supervisory personnel conceded that McDaniel had an excellent
work record and one of his superiors described him as an "outstanding" guard.
In September, however, McDaniel had incurred the displeasure of the Respondent
by his zealous representation of his fellow employees and as a result had found
himself the object of a discriminatory reassignment. Nevertheless, McDaniel re-
mained on the negotiating committee. It is apparent that notwithstanding
McDaniel's admitted abilities and faithful performance of his duties as a guard,
Branam considered him a troublesome advocate of the Union's position and de-
termined to eliminate him from any consideration for reemployment. Accordingly,
it is my conclusion, on the foregoing findings, that in view of McDaniel's excellent
work record he would have been reemployed when Triplett quit on the morning
of December 16, absent a discriminatory motive on the Respondent's part. I further
conclude that when the Respondent did not reemploy him either then, or later as
other replacements had to be secured, Burns violated Section 8(a)(3) and (1) of
the Act. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 186-187; Piasecki Air-
craft Corporation v. N.L.R.B, 280 F 2d 575, 585 (CA. 3), cert. denied 364 U.S.
933; Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R.B., 302 F.
2d 186 (C.A.D.C.).12
One further matter remains to be considered. This relates to certain conversations
that Captain Supernaw and Lieutenant Miller are alleged to have had with the
employees early in August. Thus, according to several of the guards, namely, Mc-
Daniel, Richard Nelson, and Harry W. Trost, on or about August 7, Lieutenant
Miller engaged in a discussion about their working conditions and inquired as to
whether they would "forget about the union" 13 if they went back to $1.60 an hour
and worked only 40 hours a week.14 Nelson further testified that a couple of days
after this incident, Captain Supernaw asked him substantially the same question.
Supernaw denied having had such a conversation with Nelson and his denial is
credited. Miller, however, did not deny having discussed the matter of a wage
raise with the employees. He frankly conceded that during the course of a general
discussion with the guards he had made some comments about the Union and the
prospects of a wage increase, but averred that he had made no promises to the
men. Miller further testified that he reported this conversation to Supernaw and
that a few days later his superior told him to be quiet and say no more about the
matter to the guards. On the basis of the foregoing testimony, it is my conclusion
'2 In his brief the General Counsel further contends that the Respondent also violated
Section 8(a) (5) of the Act by the insistence of Branam that the strikers request re-
instatement as individuals and not as a group The General Counsel, however, failed to
make such an allegation in his complaint It is true that the facts with respect to
Branam's bypassing of the Union were fully developed at the hearing On the other hand,
it was not until the close of the hearing that the General Counsel intimated that he was
disposed to raise such a contention in his brief and, when he did so, there ensued a some-
what heated exchange between counsel as to the propriety of such intentions. Under
these circumstances, it does not appear that it can fairly be said that this issue, as raised
in the brief of General Counsel, was fully litigated Local Union No $1, Sheet Metal
Workers' Association, AFL-CIO, et at (Sheet Metal, Air Conditioning and Roofing Con-
tractors ' Association of Central Indiana, Inc ), 136 NLRB 787 Cf Borg-IVarner Con-
trols , Borg-Warner Corporation, 128 NLRB 1035, 1042 ; Capitol Fieh Company, 126 NLRB
980, footnote 2, remanded on other grounds 294 F 2d 868 (CA. 5) In any event, there
is presently outstanding, in Case No 17-CA-1845, it recommended order against the
Respondent to bargain with the Union, and, in consequence thereof, it does not appear
necessary to provide for any additional provisions of that character in the order in the
Instant case B. M. Smith, et at, a partnership d/b/a National Parts Warehouse, 136
NLRB 547, footnote 2
i3 The quotation is from the testimony of McDaniel, Nelson, and Trost.
'4 At that time the guards were receiving $1.35 per hour and worked it 48-hour week.
Until April 1, 1961, however, they had been on a 40-hour week and had been paid $1.60
an hour
1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that during the incident in question Miller did question the men as to whether they
would forget about the Union if the Company returned them to a 40-hour week
at $1.60 per hour.
The Respondent contends that even if Miller made the comments in question he
was unauthorized to do so, that he made it clear to the men that he was acting on
his own, and that for these reasons the Company should not be held liable for such
remarks. It is true, as one of the General Counsel's witnesses conceded,15 that
during the conversation in question Miller told the guards that none of his superiors
had suggested that he discuss the matter with them and that he was doing it of his
own volition. On the other hand, after Miller himself had brought the subject to
the attention of Supernaw, his superior, the latter made no effort to publicly disavow
Miller's conduct. Consequently, the Respondent cannot now avoid responsibility
for the character of Miller's actions. At the time in question the Union had been
certified as the bargaining agent for the employees. The comments and sugges-
tions of Miller tended to minimize for the guards the importance of their continued
adherence to the certified bargaining representative. As found earlier herein, Miller
was a supervisor. Consequently, by his conduct on this occasion, the Respondent
must be held to have violated Section 8(a)(5) and (1) of the Act. I so find.16
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes affecting commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices, I will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. Having found that
the Respondent discriminatorily refused to reemploy Albert McDaniel on and after
December 16, 1961, I will recommend that the Respondent offer him immediate
and full reemployment without prejudice to his seniority or other rights and priv-
ileges, and make him whole for any loss of earnings that he may have suffered by
payment to him of a sum of money equal to that which he normally would have
earned from the aforesaid date to the date of the Respondent's offer of reemploy-
ment, less net earnings during said period. The backpay provided for herein shall
be computed in accordance with the formula stated in F. W. Woolworth Company,
90 NLRB 289.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organiza-
tion, all within the meaning of the Act.
2. By refusing to reemploy Albert McDaniel on and after December 16, 1961,
thereby discriminating in regard to his hire and tenure and discouraging member-
ship in the Union, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
3. By urging employees to ignore the Union in making their wage and hour de-
mands upon the Company, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the Act.17
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
15 Namely, Trost.
18 Richard Nelson also testified that on a later occasion after the employees had voted
to authorize the Union to call a strike, Lieutenant Siebken told him that any guard who
went on strike was no friend of his. The General Counsel alleged that this comment was
coercive. Siebken testified that he could not recall having made any such remark Nelson
was extremely confused as to the date of the alleged conversation, but appeared to have
an accurate recollection of what was said. In any event, it is my conclusion that even
assuming that Siebken made the remark in question it was not a violation of the Act
17 There is no provision in the Recommended Order requiring the Respondent to adhere
to the requirements of Section -8(a) (5) of the Act, because there is presently outstanding
in Case No. 17-CA-1845 a Recommended Order containing such a provision. B at Ssnsth,
et al, a partnership d/b/a National Parts Warehouse, 136 NLRB 547, footnote 2
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1697
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The General Counsel has not proved by a preponderance of the evidence that
the Respondent constructively discharged Albert McDaniel on November 22, 1962,
as alleged in the complaint, or that it interfered with, restrained, or coerced its
employees in the exercise of the rights guaranteed by the Act, except by the acts
and conduct found herein to have been violative.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, I hereby recommend that the Respondent, The William
J. Burns International Detective Agency, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Guards Union of America, or
any other labor organization of its employees, by discharging or refusing to reinstate
any of its employees or by discriminating in any other manner in regard to their
employment.
(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer Albert McDaniel immediate and full reemployment to the position he
would have had, absent the Respondent's unfair labor practices, and make him
whole for any loss of pay be may have suffered by payment to him of a sum of
money equal to that which he normally would have earned from the date of the
discriminatory refusal to reemploy him on December 16, 1961, to the date of the
offer of reemployment, less his net earnings during said period, said backpay to be
computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Recommended Order.
(c) Post at its field office at the Mead facility, copies of the notice attached hereto
marked "Appendix." Copies of said notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps the Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Guards Union of
America, or in any other labor organization of our employees, or in any manner
discriminate in regard to their hire or tenure of employment, or any term or
condition of their employment.
WE WILL offer to Albert McDaniel immediate and full reemployment, with-
out prejudice to any seniority or other rights previously enjoyed, and make
him whole for any loss of pay suffered as a result of the discrimination against
him.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their own choos-
64985 6-63-vol. 137-108
1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, to engage in concerted activities for the purposes of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities
TIIE WILLIAM J. BURNS INTERNATIONAL
DETECTIVE AGENCY, INC.,
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.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , Telephone Number,
Baltimore 17-7000, Extension 731, if they have any questions concerning this notice
or compliance with its provisions.
International Ladies' Garment Workers ' Union, AFL-CIO and
Coed Collar Company
International Ladies' Garment Workers' Union , AFL-CIO and
Adrian 's, Inc. Cases Nos. 10-CP-3 and 10-CP-5. July 30, 1962
DECISION AND ORDER
On May 4, 1960, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the Charging Parties and the General Counsel filed ex-
ceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in the exceptions. Accordingly, the Board adopts
the Trial Examiner's evidentiary findings but not his conclusions or
recommendations, as indicated below.
The complaint alleges that the Union violated Section 8(b) (7) (B)
by picketing Coed, a manufacturer, and Adrian's, a retail store, since
December 15, 1959, with an object of forcing Coed to recognize and
bargain with the Union as the representative of Coed's employees,
and forcing such employees to select the Union as their representative.'
As the Trial Examiner found, the Union established a picket line
at Coed on July 21, 1959, with signs stating that Coed was "unfair to
organized labor" and that fellow employees had been locked out at the
Gordo plant (operated by another corporation, F.G. & W. Company,
which had some common officers and common ownership interests with
' There is no contention that the Union was seeking to obtain recognition from or
organize Adrian's.
137 NLRB No. 181.