The William J. Burns Int'l Detective Agency, Inc.

National Labor Relations Board - Board Decisions

Sep 24, 1964

148 N.L.R.B. 1267 (N.L.R.B. 1964)

WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1267
Junior assistant housekeepers : Hotel Employees' Union would in-
clude the junior assistant housekeepers in the unit, while the Em-
ployer and the Intervenor would exclude them. These individuals
are three in number and each responsibly directs 25 to 30 housekeep-
ing employees. Junior assistant housekeepers are paid 20 percent
more than the employees they direct and perform no manual labor.
They possess the authority to hire and discharge employees. We find
the junior assistant housekeepers to be supervisors within the mean-
ing of the Act and therefore we shall exclude them from the unit.
In view of the foregoing, we shall direct an election in the follow-
ing unit of employees which we find to be appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act: 11
All employees employed by the Employer, Ilikai Incorporated,
Association of Owners Ilikai Apartment Building, and International
Innkeepers Incorporated at its hotel-apartment building located in
Honolulu, Hawaii, including restaurant employees and accounting de-
partment employees, but excluding the houseman supervisor, junior
assistant housekeepers, all professional employees, guards, watchmen,
and all supervisors within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
n Hotel Employees ' Union has indicated that it wishes to proceed to an election in
whatever unit the Board finds to be appropriate.
The William J. Burns International Detective Agency, Inc. and
International Guards Union of America
The William J. Burns International Detective Agency, Inc. and
International Guards Union of America , Petitioner . Cases Nos.
17-CA-92145, 17-CA-2161, and 17-RC-4028. September 24,1961p
DECISION AND ORDER
On April 16, 1964, Trial Examiner James, T. Barker issued his
Decision and report on Objections in the above-entitled proceeding,
finding that Respondent had engaged in and was engaging in certain
unfair labor practices and interference with the election held in Case
No. 17-RC-4023, and recommending that it cease and desist there from
and take certain affirmative action, and that the election be set aside,
as set forth in the attached Decision. He also found that Respondent
had not engaged in certain other unfair 'labor practices and dismissed
the allegations of the complaint as to them. Thereafter, the Respond-
ent and the General Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs.
148 NLRB No. 113. ,
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error. The rulings are hereby
affirmed. The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this case, and adopts
the findings, conclusions, and recommendations of the Trial Exam-
iner to the extent consistent herewith.'
1. We find, in agreement with the Trial Examiner, that Respond-
ent violated Section 8(a) (5) of the Act by terminating its contract
with Creighton University, without notice to and bargaining with the
Union which was the duly certified bargaining representative of its
employees.2
2. On January 2, 1963, the Union filed a representation petition
seeking an election among Respondent's guard employees in the
Metropolitan Kansas City, Missouri, area. Between April 5 and 15,
a mail ballot election among these employees was conducted in which
the Union was rejected. Thereafter, on April 20, the Union filed
objections to the election. An unfair labor practice complaint in-
volving the same conduct which formed the basis for the election ob-
jections was issued. The hearings on the objections and unfair labor
practices were consolidated.
The record establishes that between January 4 and April 9, 1963,
Respondent mailed to its Kansas City employees five letters which,
in pertinent part, stated that the advent of the Union in neighboring
Nebraska had resulted in the loss of Respondent's clients there. The
Trial Examiner concluded that the representation election should be
set aside and a new one directed because these letters contained mate-
rial misrepresentations concerning-
... potential loss of contracts and a consequent loss of wages
and employment . . . considerations striking at the very heart of
the employment relationship and fraught with singular, para-
mount economic consequences [,] . . . matters so vital [that mis-
representations concerning them] would of necessity have
significant impact upon the consciousness of the employee and
affect his vote in the election.
The Trial Examiner found, however, that the letters were privileged
within the meaning of Section 8 (c) because these communications did
not indicate Respondent's present or future complicity with clients in
bringing about contract terminations and because these letters con-
tained neither threats of reprisal nor promises of benefit to employees.
1 Respondent's request for oral argument is denied as, in our opinion, the record, includ-
ing the exceptions and briefs, adequately presents the issues and the positions of the
parties.
2Member Leedom would find a violation of Section 8(a)(5) based solely on Respond-
ent's failure to bargain concerning the effects of the contract termination . Member
Jenkins would find that the cancellation of the contract in the midst of negotiations be-
tween the Respondent and the Union demonstrates Respondent 's lack of good faith and
accordingly would find that Respondent's conduct is violative of Section 8(a) (5).
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1269
Accordingly the Trial Examiner found that the letters to employees
did not violate Section 8(a) (1) of the Act.
The record shows that the February 6 letter sent by Respondent im-
plied that cancellation of the Safeway contract was related to union
activities and did not apprise the employees that certain operational
changes made by Safeway had eliminated the need for further guard
services. Similarly, while asserting that Respondent was down to
one client in Omaha, the Kellogg Company having canceled, the letter
of March 28 did not inform employees that the Kellogg Company had
given "poor service" as the reason for terminating its contract and
that the termination was not based upon the advent of the Union.
In its final letter of April 9, Respondent implied that its sole Omaha,
Nebraska, client, Creighton University, had canceled its contract and
that unionization had prompted this action by the university. The
record shows that Respondent had taken the initiative and termi-
nated this contract, assertedly because it was uneconomic to continue
to service only one client in that area.
For the reasons set forth by the Trial Examiner we accept his
conclusions that the communications to employees contained mate-
rial misrepresentations concerning matters striking at the heart of
the employment relationship, and that such misrepresentations re-
quire that the election be set aside and another election conducted.
We do not agree, however, with his conclusion that the letters were
privileged communications within the meaning of Section 8(c) and
therefore not violative of Section 8(a) (1). In the first place, it is
not entirely accurate to say that the letters referred only to contract
terminations in which Respondent's clients took the initiative. As
the record clearly shows, Respondent itself terminated the Creighton
University contract. Secondly, each of the letters was calculated to
convince employees that the contract terminations were the direct re-
sult of union organization. Although the letters created the im-
pression that the terminations were initiated as economic reprisals
by Respondent's clients rather than Respondent, these particular im-
pressions were created as a direct result of Respondent's misrepre-
sentations of the facts surrounding the cancellations. Had Respond-
ent fully disclosed all relevant and material facts to employees, there
would have been no grounds for them to conclude that selection of
the Union threatened their jobs. By deliberately and consciously
withholding such information, Respondent engaged in material mis-
representations which transformed occurrences actually explainable
in terms having nothing to do with employees' exercise of the right
to select union representation, into occurrences which employees could
only view as threats that selection of a union was bound to result in
the loss of their jobs. Respondent's misrepresentations were thus
clearly calculated to coerce the employees into rejection of the Union.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To hold that coercive misrepresentations of this character are no more
than the expression of "views, argument, or' opinions," and under
Section 8(c) are immunized against an unfair labor practice finding,
would do violence to the spirit and purpose of that section .3 Accord-
ingly, we Find, in view of all the circumstances, that Respondent's
letters to its employees interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by Section 7 of the
Act, in violation of Section 8(a) (1).
3. We agree with the Trial Examiner, for the reasons stated in his
Decision, that Lieutenant Evans' offer to bet employee Heselton $5
that the unit would not go union and Evans' additional remarks that
"if it didn't go union [the Company] had something cooking up better
for the boys," violated Section 8 (a) (1).
We find, contrary to the Trial Examiner, that Evans' remark that
"if [the Kansas City operations] did go union that probably [the
Company] would lose contracts like they did in Omaha" also vio-
lates Section 8 (a) (1). We find that this remark further emphasized
the misrepresentations in Respondent's letters and also tended to in-
terfere with and coerce employees in the exercise of their Section 7
rights.
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom, and from
like or related conduct, and that it take certain affirmative action to
effectuate the policies of the Act.
For the reasons stated in our decision in Winn-Dixie Stores, Inc.,
147 NLRB 788, we shall order the Respondent to bargain not only
about the effects on the employees of the discontinuance of its opera-
tions in the Omaha, Nebraska, area, but also about the resumption of
such operations 4
We shall further order, in accordance with our decision in Winn-
Dixie Stores, Inc., supra, that respondent shall make the discharged
employees whole for any loss of pay they may have suffered as a re-
sult of Respondent's unfair labor practice. The liability for such
backpay shall cease upon the occurrence of any of the following con-
ditions: (1) reaching mutual agreement with the Union relating to
the subjects which Respondent is herein required to bargain about;
(2) bargaining to a bona fide impasse; (3) the failure of the Union
to commence negotiations within 5 days of the receipt of the Respond-
3 International Union of Electrical , Radio and Machine Workers , AFL-CIO v. N.L R.B.
(NECO Electrical Products Corp.), 289 F. 2d 757, 762-763 (CAD C.).
4Because Member Leedom finds 8(a)(5) only in the refusal to bargain concerning the
effects upon employees of the closing down of the plant, he would remedy such violation
by requiring the Respondent to bargain with the Union , upon request , as to such effects.
He therefore finds unacceptable the Trial Examiner's recommended order or the expansion
of that order by his colleagues.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1271
ent's offer to bargain with the Union; or (4) the failure of the Union
to bargain thereafter in good faith. Of course, if the Respondent
resumes its operations and offers to reinstate its former employees to
their same or substantially equivalent positions, its liability will cease
as of that date .5 Backpay 6 shall be based upon the earnings which
the terminated employees would normally have received during the
applicable period, less any net interim earnings, and shall be com-
puted on a quarterly basis in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling
Company of Miami, Inc., 344 U.S.,344; with interest thereon, Isis
Plumbing ct Heating Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent , The William J. Burns International Detective Agency,
Inc., its officers , agents, successors , and 'assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Guards
Union of America as the certified bargaining representative of its
guards in the Metropolitan Omaha, Nebraska , area, with respect to
wages , hours , and other terms and conditions of employment.
(b) Offering benefits- to employees or engaging in coercive mis-
representations for the purpose of inducing them to withdraw their
allegiance from the Union or to vote against , the Union in a repre-
sentation election conducted under the Act, or in any other manner
engaging in conduct or making statements constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
( c) In any like or related manner interfering with , restraining, or
coercing its employees in the exercise of the rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer to and , upon request , bargain collectively with the Union
concerning the resumption of its operations in the Omaha, Nebraska,
area, and, if no agreement is reached with respect thereto, bargain
collectively with the Union concerning the effects of the discontinu-
ance of its operations on the employees in the appropriate unit.
(b) Make Gerald King, Robert Henry , and Lee Trusdale whole
for any loss of pay suffered by them in the manner and under the
conditions and circumstances set forth in the section of the Board's
Decision entitled "The Remedy."
6 Fibreboard Paper Products Corporation, 138 NLRB 550 , enfd. 322 F . 2d 411 (C.A.D C.),
cert. granted 375 U.S. 963.
6 A.P.W. Products Co, Inc., 137 NLRB 25.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
other records necessary to analyze the amount of backpay due under
the terms of this Order.
(d) Post at its places of business in Omaha, Nebraska, and Kansas
City, Missouri, copies of the attached notices marked "Appendix A" 7
and "Appendix B." 8 Copies of said notices, to be furnished by the
Regional Director for Region 17, shall, after having been signed by
the Respondent's representative, be posted for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to its guard employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or cov-
ered by any other material. Mail copies of said notices, signed by
Respondent's representative, immediately upon receipt thereof to the
Union and to each of the above-named employees.
(e) Notify the Regional Director for Region 17, in writing, within
10 days from the date of this Order, what steps the Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the election in Case No. 17-RC-4028 be
set aside and that the complaint be, and it hereby is, dismissed insofar
as it alleges unfair labor practices not specifically found herein.
7 Appendix A shall be. posted in the State of Nebraska and Appendix B shall be posted
in the State of Missouri.
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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
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, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with International
Guards Union of America as the certified bargaining representa-
tive of our employees in the appropriate unit described below :
All guards employed by The William J. Burns Interna-
tional Detective Agency, Inc., in the Metropolitan Omaha,
Nebraska, area, including regular part-time guards, but ex-
cluding office clerical employees and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1273
above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act, or to refrain from any and all such activities.
WE WILL OFFER to and, upon request, bargain collectively with
the above-named Union as the exclusive representative of all em-
ployees in the aforesaid unit with respect to resumption of our
operations, and failing to reach agreement thereon, WE WILL bar-
gain collectively as to the effects of the discontinuance of our
operations.
WE WILL make Gerald King, Robert Henry, and Lee Trusdale
whole for any loss of pay suffered by them as a result of failure
and refusal to bargain with the aforenamed Union concerning
the discontinuance of our operations.
THE WILLIAM J. BURNS INTERNATIONAL
DETECTIVE AGENCY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, 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, Mis-
souri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any question concerning this notice or compliance with its provisions.
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, as amended, we hereby notify our employees that :
WE WILL NOT promise our employees economic benefits for the
purpose of discouraging their union activities or make statements
which interfere with, restrain, or coerce employees in their par-
ticipation in representation elections.
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, join, or assist the International Guards
Union of America, 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 col-
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
THE WILLIAM J. BmzNs INTERNATIONAL
DETECTIVE AGENCY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, 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, Mis-
souri, Telephone No. Baltimore 1-7000, Extension 731, if they have
any question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS
STATEMENT OF THE CASE
Upon a charge, amended charge, and a second amended charge filed in Case
No. 17-CA-2145 on April 1, 15, and May 24, respectively, by International Guards
Union of America, hereinafter called the Union; and upon a charge filed in Case
No. 17-CA-2161 on April 16, by the Union, and an amended charge filed in said
case on May 24, the Regional Director for Region 17, on May 29, 1963, issued an
order consolidating cases, complaint, and notice of hearing designating The William
J. Burns International Detective Agency, Inc., as Respondent, and alleging viola-
tions of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended, hereinafter called the Act. Subsequently, by order dated June 5, 1963,
the Regional Director consolidated for purpose of hearing and decision, as more fully
discussed below, objections relating to Case No. 17-RC-4028. In its duly filed
answer the Respondent admitted certain allegations of the complaint but denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner James T. Barker
at Kansas City, Missouri, on October 29, 1963, and at Omaha, Nebraska, on Octo-
ber 31, 1963. All parties were represented at the hearings and were afforded full
opportunity to be heard, to introduce relevant evidence, to present oral argument,
and to file briefs with me. On December 4, 1963, the General Counsel filed a
memorandum with me and on December 5, 1963, the Respondent filed a brief.
Upon a consideration of the entire record, the memorandum of the General Coun-
sel, the brief of the Respondent, and upon my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a Delaware corporation maintaining its principal office and
place of business in New York, New York. The Respondent is engaged in furnish-
ing guard services throughout the United States, including the States of Kansas, Mis-
souri, and Nebraska. The Respondent annually furnishes guard services valued
in excess of $50,000 to customers located outside the State of New York. More-
over, it annually furnishes guard services valued in excess of $50,000 from its
Kansas City, Missouri, office, and further, annually furnishes guard services in excess
of $50,000 in the State of Nebraska.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1275
Upon these admitted facts, I find that at all times pertinent herein, Respondent
has been engaged in commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
International Guards Union of America is admitted by Respondent to be a labor
organization within the meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges violations of Section 8(a)(1), (3), and (5) of the Act
arising out of purported conduct of Respondent occurring in connection with Re-
spondent's operations in Kansas City, Missouri, and Omaha, Nebraska. The Gen-
eral Counsel contends that Respondent's conduct in terminating three guards em-
ployed at Creighton University in Omaha, Nebraska, in refusing to bargain collec-
tively with the Union as the certified bargaining representative of its Omaha,
Nebraska, guards, and in further failing either to notify or consult with the Union
concerning its decision to terminate the Creighton University contract to furnish
guard service was violative of the Act, and was related to the threats, interrogation,
promises of benefit, and surveillance, or impression of surveillance, which are al-
leged to have occurred in connection with Respondent's Kansas City operation and
was designed to destroy the Union's majority in each unit.
The Respondent denies that it engaged in unlawful threats, interrogation, or
surveillance with respect to its Kansas City employees and further denies that it
violated the Act in terminating the employment of the employees assigned to guard
duty at Creighton University; or that it refused to bargain collectively with the
Union with respect to the Omaha, Nebraska, guard contingent. Affirmatively, the
Respondent contends that it did not unlawfully discharge three guard employees as-
signed to Creighton University but that their employment terminated as the result
of the cancellation of the service contract which Respondent concedes it initiated
because the contract had become unprofitable and economically infeasible follow-
ing the cancellation or termination of all other of its guard service contracts in
the Omaha area. Respondent further asserts that, contrary to the allegations of
the complaint, it did not fail to bargain collectively with the Union, but when re-
quested by the Union to do so it informed the Union that it had no employees in
the Omaha, Nebraska, metropolitan area-the unit in which the Union had been
certified-and, as a consequence, "no practical reason" existed for meeting with the
Union. Respondent further contends that as the termination of the Creighton Uni-
versity contract was a management decision predicated solely on economic grounds
it had no obligation under the Act to consult with the Union concerning its decision
to terminate the contract.
1. Case No. 17-CA-2161-the Omaha unit
On December 13, 1962, the Regional Director issued a Decision and Direction of
Election in Case No. 17-RC-3828, finding appropriate a unit of all guards employed
by The William J. Burns International Detective Agency, Inc., in the Metropolitan
Omaha, Nebraska, area. On December 22, 1962, the Respondent filed with the
Board a request for review of the Regional Director's December 13 Decision and
Direction of Election, which request the Board denied on January 10, 1963. There-
after, between January 11 and 23, 1963, an election by secret mail ballot was con-
ducted under the direction of the Regional Director among the employees in the
unit found appropriate in the Regional Director's December 13, 1962, Decision and
Direction of Election. The tally of ballots furnished the parties on January 23,
1963, showed that of four eligible voters in the unit, three had cast ballots, of which
two were for the Union and one against it. The ballot of the fourth individual
had not been received by the Regional Director until January 24, 1963. There-
after, the Employer filed timely objections to conduct affecting the result of the
election, contending, inter alia, that the employee whose ballot had not been received
until January 24 had had insufficient time to mark and return his ballot. After an
investigation conducted administratively by the Regional Director, the Regional Di-
rector found the Employer's objections to be without merit and, on February 19,
1963, he issued a Supplemental Decision and Certification of Representative cer-
tifying the Union as the exclusive bargaining representative in the appropriate unit.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Alleged refusal to bargain
After the Regional Director's February 19, 1963, certification of the Union as the
collective-bargaining representative of Respondent's guard employees in the Metro-
politan Omaha area, the first contract between Respondent and the Union with
respect to negotiations was initiated by Respondent's manager, Ernest Branam, and
occurred on March 1. On that day Branam telephoned Union Vice President New-
man at his St. Louis, Missouri, home and inquired if the Union were ready to submit
a contract. Newman explained that there had been illness in his family and that
as soon as [he could] get a little time" he would submit an agreement. Branam
inquired of Newman concerning the "type" of agreement he would submit and was
informed that it would "probably be the same type of contract" as the Union had
at the Omaha missile site. Branam inquired if the contract provided for the "$1.75
rate" and Newman said that it did. Newman stated that he would contact Branam
"in the next few days."
Thereafter, on March 4 Branam sent a letter to Newman confirming the March 1
telephone conversation and stating his understanding that Newman would prepare
and send to him at his earliest convenience a proposed contract "containing the
same provisions as the one you submitted in connection with the Mead, Nebraska,
unit, which I received on July 26, 1961." The letter then went on to review the
terms of the contract. In addition Branam's March 4 letter contained the follow-
ing two paragraphs:
Also confirming our conversation, you stated that you would furnish a date
which would be acceptable to you for the opening of formal contract negotia-
tions in connection with Omaha guards.
As soon as possible after the above is received, I will advise you whether or
not the date proposed for the negotiation meeting is acceptable.
The next communication between the Respondent and the Union was in form of
a March 26 letter from Union Vice President Newman to Manager Branam. The
text of the letter was as follows:
Enclosed are three proposed contracts in behalf of the guards employed by
you in the Metropolitan Omaha-Nebraska Area as certified by the NLRB on
February 19, 1963, Case No. 17-RC-3828. In addition we would like to dis-
cuss sick leave and insurance.
We can meet with you on April 8 and 9, 1963, in the city of Omaha, Nebraska,
to discuss this Proposal.
I would like to hear from you at your earliest convenience regarding this
matter.
Thereafter on March 29, Newman was in Kansas City and called Branam at his
office. During the conversation Newman asked Branam if, in accordance with
Newman's March 26 letter request, the parties were going to be able to meet in
Omaha on April 8. Branam responded, "I don't know for sure. Something has
come up and I will get in touch with you at the Capri Motel on April 5 and let
you know."
Branam did not contact Newman at the Capri Motel on April 5 but on that day
Branam addressed a letter to Newman at his St. Louis, Missouri, headquarters, with
a carbon copy to be sent to Newman at the Capri Motel address, the text of which
read as follows:
This will confirm receipt of your March 26, 1963, letter regarding Burns
guards at Omaha, Nebraska. We have just currently been advised by the
Kellogg Company, Omaha, Nebraska, that they have canceled our contract,
effective April 8, 1963. The Agency's guard service at Creighton University
in Omaha is also to be discontinued as of April 14, 1963. As you know, this
leaves the Agency with no guard contracts in Omaha.
In view of the foregoing developments, I can see no practical reason for meet-
ing with you in Omaha as suggested.
Newman made no attempt after receipt of Branam's April 5 letter to contact
Branam and the Respondent and the Union did not thereafter negotiate concern-
ing the terms of collective-bargaining agreement with respect to the Omaha area.'
1 The foregoing is predicated upon the credited testimony of Arthur Newman as sup-
ported by correspondence received in evidence and as further supported in part by the
testimony of Ernest Branam.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1277
b. Cancellation of the Omaha area contracts
Brother Frank Jelinek of Creighton University in Omaha testified that in late
January or early February 1963, he conversed with Manager Branam concerning
Respondent's then current agreement with the university to furnish guard services.
With respect to the conversation Brother Jelinek testified as follows:
Q. Do you recall what was said by Mr. Branam and by you?
A. Just maybe roughly that they wanted to withdraw from their contract,
that they were having some trouble here in the State of Nebraska, I don't
know if it was just with the Labor Board or if it was anything else, and that
they would, if they continued, would have to raise the price of our present
contract.
Subsequently, on March 5, 1963, the Respondent was informed by letter from
the Kellogg Company that Respondent's contract to furnish guard service to Kellogg
was being terminated effective April 8, 1963. Theretofore, contracts to furnish guard
service to other employers in the Omaha area, including Safeway Stores and Omaha
Steel Company, had been terminated. The Safeway contract had terminated on
December 31, 1962, and the Omaha Steel contract some months earlier. Accord-
ingly, as a consequence of the termination of the Kellogg Company contract Re-
spondent had in the Omaha area only one other agreement to furnish guard service.
This agreement was with Creighton University. The original agreement with the
university provided for the furnishing of 39 hours of guard service, but approximately
5 weeks before the termination of the Creighton contract-which subsequently oc-
curred-the Respondent agreed to furnish on a brief temporary basis 48 hours of
additional guard service per week in replacement of the university's night watchman
who had been injured and could not perform his services. Respondent employed
four guard employees at Creighton.
Following notification of the termination of the Kellogg contract the Respondent
undertook a cost analysis of its Omaha operations and determined that it would be
unprofitable to continue operations in Omaha on the basis of the one, Creighton
University, contract.
Accordingly, pursuant to instructions from his superior, Manager Branam again
met with Brother Jelinek. The meeting occurred on or about April 1, and the two
men discussed the necessity of terminating the Creighton University contract in light
of the recent cancellation of the Kellogg contract which Branam asserted rendered
Respondent's further operation in the Omaha metropolitan area unprofitable and
uneconomic. During the conversation some reference was made to the prospects of
increasing Respondent's charges for its services to Creighton University and Brother
Jelinek indicated that it might be possible to raise rates "to a point" if Respondent
could "remain competitive" with other guard service in the area. Manager Branam
indicated that the charges would be "quite in excess" of those under the existing
agreement, that the costs would be excessive and Respondent could not continue
operating in the Omaha area with only one contract. It was agreed that the con-
tract between the parties could be terminated pursuant to a 15-day notice in lieu of
the 30-day notice provision of the original contract. It was understood between the
parties that their conversation constituted notice to Creighton University of Re-
spondent's desire to terminate the agreement.
On April 4, 1963, Manager Branam sent a letter to Creighton University, to the
attention of Brother Frank T. Jelinek, which contained the following text:
This will confirm our discussion in Omaha at your office on April 1, 1963.
As you know, prior to the cancellation of the Kellogg contract by the Kellogg
Company, our operations in Omaha were conducted at a loss. The cancella-
tion of this contract increases the loss of our Omaha operations.
We sincerely regret that our services are to be discontinued at 12 midnight,
April 14, 1963. We have valued our relationship with you and the University.
We trust that at some time in the future we may again have the opportunity
of serving you.
Manager Branam testified that he had not and did not at any juncture discuss
with the Union the proposed cancellation of the Creighton University contract.2
2 The foregoing with respect to events that transpired on and after March 5, 1963, is
predicated upon the credited testimony of Manager Branam as supported by that of
Brother Frank Jelinek and documents of record in this proceeding.
1 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
Case No 17-CA-2161-The Omaha, Nebraska, Unit
The Refusal To Bargain
a. The Union's certification
As found above, the Regional Director on December 13, 1963, made a determina-
tion of the appropriate unit encompassing Respondent's guard employees in the
Omaha metropolitan area. Respondent's request for review filed with the Board on
December 22, 1962, was denied and the Regional Director on February 19, 1963,
certified the Union as the collective-bargaining representative of the Respondent's
Omaha guards.
While Respondent stated at the hearing herein it was reserving the objections it
had raised before the Regional Director and the Board in the earlier stages of the
representation proceeding in Case No. 17-RC-3828, it sought at the instant hearing
to offer no evidence newly discovered or unavailable to it at the time of the prior
representation hearing. Accordingly, I am bound by the Regional Director's deter-
mination of the appropriate unit 3 and, accordingly, I find that the appropriate unit for
the purposes of collective bargaining is the following described unit:
All guards employed by the Respondent in the Metropolitan Omaha, Ne-
braska, area, including regular part-time guards, but excluding office clerical
employees, and professional employees and supervisors as defined in the Act.
b. The unilateral termination of guard service
As the evidence shows that at all times pertinent herein after February 19, 1963,
including April 4 and 14, 1963 (the dates, respectively, upon which the Union re-
ceived notice /6f Respondent's decision to terminate the Creighton University con-
tract and the date on which the contract was terminated), the Union was the cer-
tified bargaining representative of employees in an appropriate unit, and as the
evidence further establishes that Respondent did not discuss with the Union its
decision to terminate the Creighton contract, a mandatory subject of bargaining,
I find that the Respondent violated Section 8(a)(5) of the Act.4 Moreover, as
Respondent's notice of April 5 informing the Union that the Creighton University
contract was to be discontinued was cast in terms of a fait accompli and apprising
the Union that "no practical reason" existed for further meetings, the Union was
not, in this circumstance, required to resort to the obviously futile formality of
requesting the Respondent to negotiate further with respect to a decision it had
already made 5 As Respondent violated Section 8 (a) (5) of the Act by failing in its
mandatory bargaining obligation to consult with the Union concerning its decision
to terminate the Creighton University contract, I do not decide whether, as addi-
tionally alleged in the complaint, its refusal to meet with the Union on April 8 or 9
as requested on the ground that it had no employees in the unit was additionally
a violation of Section 8(a) (5). In any event the remedy herein would not be
different.
3 The Mountain States Telephone and Telegraph Company, 136 NLRB 1612, 1614-1615
4 Town & Country Manufacturing Company, Inc., etc., 136 NLRB 1022; Fibreboard
Paper Products Corporation, 138 NLRB 550, enfd 322 F 2d 411 (C.A.D.C.) ; Este Neider-
man et al., d/b/a Star Baby Co, 140 NLRB 678; of N.L.R.B. v. Adams Dairy, Inc.,
322 F 2d 553 (CA. 8).
6 Cf. Motoreseareh Company and K ems Corporation , 138 NLRB 1490, 1492-1493. Hart-
mann Luggage Company, 145 NLRB 1572. As the Board majority has drawn no distinc-
tion between the obligation imposed upon an employer to bargain concerning the decision
to terminate, modify, or subcontract phases of its operations and the effects or impact
of the decision, I do not here decide whether, in the circumstances of this case, sufficient
opportunity was accoided the Union to negotiate concerning the effects of the decision
upon the employees of Respondent assigned to Creighton, or if, indeed, any obligation
devolved upon the Union to affirmatively request negotiations concerning the effects Cf
N L R.B v. Adams Dairy, Inc, supra; Hai tinann Luggage Company, sup? a, the special
concurring opinion of Member Leedom therein, and cases cited therein at footnote 2 ;
NLRB. v. Rapid Bindery, Inc., et al, 293 F. 2d 170, 176, Carl Rochet et al, d/b/a
The Renton News Record, et at ., 136 NLRB 1294, 1296
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1279
c. Alleged violations of Section 8(a) (3)
With respect to the General Counsel's contention that Respondent violated Sec-
tion 8 (a)(3) of the Act by terminating three individuals employed as guards at
Creighton University, Respondent introduced persuasive evidence that for a period
of several months prior to the termination of the Creighton University contract its
Omaha operation had not been a profitable one. While during the 12-month pe-
riod, May 1962 through April 1963, its income from guard services had exceeded
guard wages and direct costs during 9 of the 12 months, and had produced a small
net profit before taxes of $1,171, Respondent 's evidence shows that for the same
period when appropriate overhead factors'assessable against the Omaha operation as
an entity of the Kansas City regional operating division were applied , the Omaha
operation had produced a net loss during 10 of the 12 months in question , totaling
$2,866.
On December 31, 1962, the Respondent 's contract with Safeway in Omaha ter-
minated . Thereafter, on April 8, the Kellogg contract ended. Respondent's net
profit before taxes and an application of the overhead factor during the first 3
months of ,1963 when it was servicing both Kellogg and Creighton University was
$311. When the overhead factor was applied the loss in Omaha to Respondent
during this 3-month period was $219. Further, Respondent introduced credible
evidence revealing that its net loss from operating in Omaha on the basis of the
Creighton University contract alone would have been , in May 1963, $468, not in-
cluding any provision for Federal income tax . In light of Manager Branam's
credited testimony that in late March and April there were no prospects for acquir-
ing other clients in the Omaha area, I conclude and find that in April 1963 Re-
spondent 's operations in Omaha were unprofitable, appeared destined `in the fore-
seeable future to remain so, and that the increase in total guard income essential to
offset the loss that would have been incur red through continuing the Creighton con-
tract would be on the order of 130 percent of that being derived from the Creighton
contract alone. Accordingly I conclude that Respondent had valid economic ground
for terminating the Creighton University contract.
In light of this, the question remains whether Respondent acted solely on economic
grounds in terminating its Creighton University operation or whether antiunion
motivation was a substantial contributing factor in the termination of the contract.
That Respondent opposed unionization of its guards is apparent enough on this
record. But mere opposition on economic grounds alone , or any other, is not viola-
tive of Section 8(a) (3) of the Act if opposition is not accompanied by acts of union
discrimination . The General Counsel contends the existence of discrimination is
established by evidence showing Respondent engaged in dilatory bargaining tactics
to destroy the status of the Union as the majority representative , not only in the
Omaha unit but in the Kansas City unit as well; that Manager Branam's initial con-
versation with Brother Jelinek, wherein he allegedly made reference to "trouble with
the Labor Board," reveals antiunion considerations were at the root of the contract's
termination; the implications arising from the admitted fact that Respondent took
the initiative in terminating the Creighton University contract; and the coloration
arising from Respondent 's'entire course of conduct respecting the Kansas City unit,
particularly with regard to its use of unlawful propaganda and other coercive efforts
in an effort to defeat the Union in the election then pending. '
The General Counsel's case would be stronger if, contrary to fact, Brother
Jelinek's testimony with respect to his initial meeting with Manager Branam were,
in the record , as unequivocal in meaning as the General Counsel in its brief con-
tends it is, or if the Union had sought during the period following its certification to
meet with Respondent and had been repulsed or put off, revealing a design on the
part of Respondent to gain time in which to dissipate the Union's majority status
either in Omaha or in Kansas City. However, on neither point was the General
Counsel's evidence persuasive.
Initially, I am unable to place reliance upon Brother Jelinek's testimony with
respect to his first conversation with Manager Branam. Brother Jelinek's testimony
concerning the substance of this first conversation was so sketchy and fragmentary
as to be susceptible of a multiplicity of meanings 'and implications (both favor<.ble
and unfavorable to the General Counsel), but, more significantly, a consideration of
his entire testimony reveals, as indeed he tacitly concedes, that he had no actual recol-
lection of the conversation's details and of the words and terminology used by Man-
ager Branam . His lack of recollection concerning the first meeting with Branam
is further emphasized by the fact that even after being permitted to refer to the
affidavit which he had on April 29, 1963, given a representative of the General
Counsel, he was unable to enlarge on or clarify his earlier fragmentary testimony
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respecting the meeting. Instead, he adverted to discussions concerning formalities
respecting the termination of the contract, which, as his testimony very literally
reveals, could have transpired only at the second, or April 1, meeting and not at
the initial meeting which Brother Jelinek placed as having occurred in late January
or early February. Moreover, I am unable to find intelligible or meaningful the
truncated remarks Brother Jelinek first uttered while reflecting upon the affidavit
which had been used for refresher purposes.
In accordance with the foregoing, I do not credit Brother Jelinek's testimony con-
cerning Manager Branam's asserted remarks at the first meeting, and even if, con-
trary to my resolution of this matter, full credence were accorded Brother Jelinek's
testimony, I would find it too tenuous and ambiguous to serve as support for an in-
ference that Respondent harbored a discriminatory motive in terminating the
Creighton University contract.
Secondly, with respect to the progress of negotiations and Respondent's alleged
dilatory tactics, the record establishes that the Union took no immediate initiative
with respect to bargaining and it was not until late March that the Union sought to
meet with Respondent to negotiate a contract. Following the Union's ultimate cer-
tification on February 19, the Kellogg contract had been terminated and the eco-
nomic wisdom of discontinuing the unprofitable operation at Creighton University,
had, by late March, become singularly apparent. Thus, Branam's comment to
Newman on March 29, asserting "that something had come up" and qualifying its
willingness to meet with Branam on April 8 or 9 as Branam had earlier, on
March 26, suggested, must be viewed in light of the economic facts extant at that
point in time in connection with the Respondent's Omaha operations. Under con-
sideration was the termination of all Omaha operations in light of the impending
Creighton University contract loss approximately $500 per month. While, as I
have found, the failure of Respondent to counsel with the Union concerning the
impending termination of the Creighton University contract was violative of its
bargaining obligations under the Act, Respondent's reticence is not, on this record
in which proof of economic necessity is so clearly demonstrated, persuasive evidence
of discriminatory motivation. Moreover, while I find that Respondent's instruc-
tions to Supervisor White to delay informing the Omaha guard contingent concern-
ing the impending termination of the Creighton contract had, as one of its objectives,
the furtherance of the effectiveness of election propaganda being employed in
Kansas City, this was, when viewed through Respondent's eyes, but a byproduct of
its economic decision to terminate the Creighton contract, and was not, as the Gen-
eral Counsel contends, indicative of an improper motive with respect to the Omaha
unit itself. As found below, the Respondent fully utilized as a campaign weapon
its deteriorating economic position in Omaha, but in the circumstances established,
I am unable to indulge the assumption that the Respondent would have continued its
unprofitable Creighton University contract if the Union had not entered the picture;
or, stated conversely, that the advent of the Union was the moving force which caused
Respondent to terminate the contract. Rather the evidence established that Re-
spondent weighed the extent of its economic loss in continuing to operate in the
Omaha area under the Creighton University contract only, measured the extent to
which anticipated losses could be reduced by adjusting service charges upward
within the limits indicated by Brother Jelinek, and made the prudent business de-
cision that continued operations in Omaha on the basis of one contract would be
unprofitable and economically unsound. In these circumstances, I am unable to
conclude that the General Counsel established by the preponderance of the evidence
that Respondent was motivated by antiunion considerations -in terminating the
Creighton University contract.6
2. Cases Nos. 17-CA-2145 and 17-RC-4028-the Kansas City unit
On January 2, 1963, the Union filed a representation petition for certification in
a unit of guard employees of the Respondent in the Metropolitan Kansas City, Mis-
souri , area. Thereafter, on March 1 , 1963, the Regional Director issued his De-
9I have considered the fact that the Charging Union withdraw its April 16, 1963,
charges in Case No 17-CA-2160, alleging that The William J. Burns International Detec-
tive Agency, Inc , had conspired with Safewav Stores, Inc , and the Kellogg Company, as
well as with Creighton University, to terminate contracts for guard services, and to
thereby discriminate against employees of the Burns Agency in violation of Section
8(a)(1) and (3) of the Act
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1281
cision and Direction of Election in Case No. 17-RC-4028, finding appropriate a unit
of all guards employed by The William J. Burns International Detective Agency,
Inc., in its Kansas City operations. As a consequence, between April 5 and 15,
1963, an election by mail ballot was conducted among the employees in the said
unit. Fifty-two ballots were cast against the Union and 22 in favor. Thereafter
on April 20 the Union filed objections to the election and on May 14 the Regional
Director issued his report on objections and recommendations therein, noting that
it had been determined that a complaint should issue in Case No. 17-CA-2145, in
which issues similar and related to those arising under the Union's objections to
election were involved. As a consequence, the Regional Director recommended
that a hearing be held upon the issues raised by the objections filed by the Union
and that the Board authorized the Regional Director to consolidate the hearing on
objections, with the hearing to be held upon the complaint in Case No. 17-CA-2145,
Thereafter, on May 29, 1963, by direction of the Board the hearing on objections
in Case No. 17-RC-4028 was ordered consolidated with any hearing to be heard
in Case No 17-CA-2145. On June 5, 1963, as set forth above, the Regional Di-
rector issued an order consolidating cases and notice of hearing on objections.
The Alleged Threats, Interrogation, and Surveillance
1. The correspondence
Ernest H Branam was at times material herein the manager of the Kansas City
office of Respondent and was in charge of Respondent's operations in Kansas City,
Missouri, and the State of Nebraska. During the period January 4, 1963, through
April 9, 1963, Branam caused to be mailed to Respondent's guard employees in the
Kansas City area five separate mimeographed letters captioned "To All Burns
Guards." Each communication bore Branam's signature.? Guard employee Dun-
nam credibly testified that he received a copy of each communication through the
mail "with my check usually." 8
The initial item of correspondence, dated January 4, 1963, which the General
Counsel introduced into evidence contained the following: 9
One of the most important facts is to know the industry that you are working
in. Burns is a contract guard service. Its business is to act as a middle-man
in offering its services to customers. The basis of your employment with
Burns, therefore, is Burns' contract for security and protection with a particular
customer. Now that customer has a perfect right to pick and choose the kind
of guard agency he wishes to deal with. Obviously, if the customer is going
to pay money for a security guard force, he wants to be sure, just as you
would yourself, that he's going to get his money's worth. Simply, the old cus-
tomer or the potential new customer has a right to decide whether or not he
wants to do business with an agency that has union guards. We know for a
fact that customers in St. Louis and in Omaha, for example, took a good look
at Burns just about the time same 1GUA came into the picture. What hap-
pened? The clients cancelled their contracts and the guards at those particular
locations were suddenly out of jobs. That is not a threat; it is simply a fact
of life. It is surely something you must consider very seriously yourself when
you think this whole matter over. [Emphasis supplied.]
The next item of correspondence which the General Counsel introduced into
evidence was dated February 6, 1963, and contained the following:
The latest IGUA letter proclaims that it represents Burns guards in Omaha,
Here's the real background on the Omaha story. When the IGUA first came
into Omaha, the Agency had five (5) clients there. Fifteen (15) Burns' guards
were earning their livelihood in Omaha by servicing those clients. In short
'The foregoing is predicated upon the credited testimony of Ernest Branam and
Thomas Dunnam, and the pertinent documents in evidence.
8 During approximately the same period of time covered by the foregoing communica-
tions, the Union was communicating with the Kansas City employees of Respondent and
distributing campaign literature and material. The material placed in evidence by Re-
spondent has been considered but as its decisional significance is slight, its contents are
not herein summarized
9 That portion of each communication which the General Counsel in his brief specifically
stresses as "being calculated to create an atmosphere of fear of economic loss" has been
emphasized by italics.
760-577-6 5-vol. 148-82
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order two of the clients cancelled their contracts and another permitted its
contract to expire without renewal. Right now Burns has two (2) clients in
Omaha and four (4) guards.
* * * * *
The most important thing about Omaha, however, as you can quickly see, is
the loss of clients and the loss of jobs for Burns guards. The guard service
business, as you must know, is highly competitive. The customer is always
shopping for the best bargain. If that customer prefers to deal with a non-
union agency, that's his privilege. Again, this is in no way a threat. It is a
plain fact of life that you must consider when and if there is an election.
[Emphasis supplied.]
Subsequently, as the General Counsel's evidence reveals, the Respondent on
March 28, 1963, again corresponded with its Kansas City guard employees. This
letter contained the following.
In our last letter we talked mostly about Omaha. We reported that then, we
had two clients in Omaha and four guards. We said when the IGUA first came
to Omaha the Agency had five clients and fifteen guards. But in short order,
two of the clients cancelled their contracts and another permitted its contract
to expire. As of today, we are now down to one client in Omaha. The reason
is the same. Another client has just cancelled its contract and the Burns guards
formerly servicing that client will shortly be out of work. The IGUA may
represent Burns Guards in Omaha but you can see for yourself just how many
they represent.
The most important thing here, as we said last time, is that a loss of clients
means a loss of jobs for Burns guards. We are not saying this will happen in
Kansas City. We are pointing out what has happened elsewhere and that in-
cludes, as you will remember, St. Louis as well. The client has a right to deal
with the kind of agency that he feels will be in his best interests. If that
happens to be a non-union agency, that is his privilege. These facts are some-
thing that you must turn over in your mind and give serious consideration to.
You will want to have looked at this upcoming election from all possible angles
so that you will be fully informed when election day arrives. We think the
best vote is a NO UNION vote. But that is a decision which is purely up
to you. Whatever way you decide, make sure that you do vote. In that way,
you will have had a direct say about your future. Don't let someone else de-
termine it for you. [Emphasis supplied in part.]
The Respondent corresponded again with its employees on April 3, 1963, and this
letter contained the following statement:
In our last letter of March 28th we told you about the latest development
in Omaha: that we were down to one client because the only other remaining
client had cancelled its contract and the three Burns guards servicing that client
were out of work. Now we learn that the former Omaha client has signed
up for guard service with Pinkerton of all people. You'll remember we told
you we had lost an important client also in St. Louis when the IGUA came
around. That St. Louis client cancelled, Burns guards were out of work and
the client proceeded to sign up with, you guessed it, Pinkerton. You'll also
remember that about a year ago in Omaha we lost a client about the time the
IGUA came around to see our guards. All of this reminds us of Newman's
latest letter to you Kansas City Burns guards. It's true, the IGUA represents
Burns guards in Louisville-all ten of them to be exact at a single client's plant.
And it's true the IGUA represents certain Pinkerton guards in the same city-
and those Pinkerton guards do get almost 300 an hour less than the Burns
guards do. And they're all in the same IGUA. This Pinkerton business
looks funny, doesn't it? Burns is in business to do business. But the record
shows when this IGUA has come around, we have had clients cancel, Burns
guards have lost their jobs and Pinkerton winds up with the blue ribbon. And,
as far as we know, all these jobs we lost were never organized by Newman
and his IGUA. We wonder how Mr. Newman explains this sort of thing.
We sincerely hope you've studied this whole union question most seriously.
We hope you've decided for yourself what's fact and what's pie-in-the-sky when
the IGUA tells you what a rosy future there is ahead. We hope you've con-
sidered what a competitive business we're all in and how the client may always
change his mind about us. What it all boils down to is what you think is in
the best interest for you and yours. We think the best vote is a NO UNION
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1283
vote. It is up to you, of course. But whatever you do-VOTE. Send in
your mail ballot on time. Don't let somebody else dictate what your future
is going to be. [Emphasis supplied in part.]
The final correspondence from the Respondent to its Kansas City guard employees
was by letter dated April 9, 1963, which contained the following reference:
We have just learned that Mr. Newman of the IGUA, in a last ditch effort
to pull the fat out of the fire, has mailed you a contract that would appear to
cover Burns guards in Omaha. What Mr. Newman hasn't fully explained is
that this contract is a PROPOSED contract. More important-what Mr. New-
man hasn't made clear is that Burns is out of business in Omaha. As of this
weekend, there won't be any clients left in Omaha and, consequently, there
won't be any Burns guards there either because service for the very last client
in Omaha has ended. You know the story. In our opinion, this PROPOSED
contract is just some more pie-in-the-sky produced by the IGUA. We think
it is downright misleading. Like we said, we sincerely hope by now that you
know the facts from fiction.
Please be sure to vote and to vote timely. [Emphasis supplied in part.]
2. The conversations
During times pertinent Lieutenant Floyd Evans was in charge of field supervision
of Respondent 's guards assigned to posts in the Kansas City area. This entailed
frequent inspection of the guard posts and , as a result , a certain frequency of con-
tact and conversation occurred between Lieutenant Evans and the approximately
125 rank-and-file guards under his supervision . That conversation ensued relating to
working conditions is established by Lieutenant Evans' credited testimony to the
effect that prior to the filing of the representation petition in the Kansas City guard
unit , he received questions from guard employees relating to the impending in-
crease in the minimum wage rates and the laws' application to them. Moreover,
Lieutenant Evans' testimony convinces me that after the Union filed its representa-
tion petition covering the Kansas City unit, discussions on occasion turned to
matters pertaining to the Union and to the letters which Respondent distributed to
the Kansas City employees . Lieutenant Evans, whose promotion from sergeant to
lieutenant had occurred in the fall of 1962, testified credibly that he had been in-
structed by his superiors not to interrogate employees concerning their union ac-
tivities and to remain neutral with respect to the Union.
The General Counsel contends that Lieutenant Evans and his superior, Assistant
Manager Clayton Smiddy, did not remain neutral but transgressed against the orga-
nizational rights of employees by certain statements , interrogation , or threats. The
General Counsel 's case in this respect was predicated upon the testimony of three
employee witnesses.
John Heselton
John Heselton testified that on or about March 1, 1963, he conversed with Lieu-
tenant Evans at his Bell Telephone post and that employee William Horton was
present . Heselton testified that during a conversation relating to the Union, Lieu-
tenant Evans asked him what he thought "about the union ." Heselton answered
"[i]t was a good thing" and Lieutenant Evans responded that "he didn 't know."
Heselton further testified that Lieutenant Evans asserted that "if it did go union that
probably would lose contracts like they did in Omaha."
Lieutenant Evans denies the substance of Heselton 's testimony and William Hor-
ton testified that he was not present during the conversation to which Heselton
alluded.
John Heselton further testified that on March 5, also at the Bell Telephone Com-
pany, he had a further conversation with Lieutenant Evans at which employee Hor-
ton was present. During this conversation , Lieutenant Evans said he would "offer
to bet $5 that it didn't go union ." Lieutenant Evans further said that "if it didn't
go union they had something cooking up better for the boys."
Lieutenant Evans testified that he did not recall offering to make such a bet and
asserted that while it was possible that he might have done so, he did not think
that he had. Employee Horton denied having been present at the conversation to
which Heselton testified.
While I credit Horton's testimony that he was not present at the two conversa-
tions aforesaid and am, accordingly , convinced that Heselton's recollection in this
respect was inaccurate, I am convinced that Heselton testified credibly concerning
the March 1 and March 5 conversations with Lieutenant Evans. As I observed him
testify, he did so with certitude and out of genuine recollection of the incidents.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lieutenant Evans' testimony with respect to the Heselton conversations was punc-
tuated with equivocation and altogether less convincing than was Heselton's.
Thomas Dunnam
Thomas Dunnam testified that in mid-December 1962, while he was employed in
a relief capacity as a guard in Respondent's employ at Whitaker Cable Co. in,
Kansas City, he conversed with Lieutenant Evans. Dunnam testified that he was
on duty at the time and that the conversation took place in a jeep driven by Lieu-
tenant Evans and that the conversation lasted from 5 to 10 minutes. During the
course of the conversation, devoted in part to matters relating to Dunnam's duties,
Dunnam testified Lieutenant Evans asserted that "we would lose all of our contracts
just the way they did in Omaha if we voted for the union, and that if we hadn't
tried to organize the union, they had talked about giving us $1.35 an hour and a paid
vacation."
Lieutenant Evans denies having made the alleged statements to Dunnam.
Employee Dunnam further testified that in April 1963 he was called to the office
of Clayton Smiddy, assistant manager of Respondent's Kansas City office, and
reprimanded for violating company regulations by entering the toll building of the
Bell-Telephone Company while off duty to obtain coffee. During the conversation,
Dunnam testified Smiddy informed him that he knew Dunnam was "involved or
working with" the Union because he "had been going over to L. A Brown's house "
Dunnam also testified that Smiddy commented that "the union election had been
beat." Dunnam testified that there had been a union meeting at Brown's home.
Clayton Smiddy denied the remarks attributed to him by Dunnam and further
credibly testified that it was contrary to regulations of the telephone company and'
Respondent for off-duty employees to enter the toll building, and the parties do.
not dispute this. Dunnam, however, contends that he was not aware of this fact
and that he had on previous occasions obtained coffee for Captain Stoner, Lieu-
tenant Evans, and Lieutenant Kiphart. Captain Stoner and Lieutenant Evans denied',
this.
I do not credit Dunnam's testimony with respect to Lieutenant Evans' alleged'
remarks during his mid-December conversation with Dunnam or with respect to.
Smiddy's purported remarks during the April conversation. Initially, Dunnam's re-
collection of the conversations appeared to me as I observed him testify to be vague;
he appeared to be lacking in certitude as to Lieutenant Evans' actual comments not
only by his demeanor in responding to questions propounded to him but as evidenced
by his testimony on direct examination that Lieutenant Evans stated all contracts
would be lost if the Union were voted in, while on cross-examination he testified
Lieutenant Evans asserted some of the contracts would be lost. Moreover, I am
unable to accept Dunnam's assertion that three of Respondent's supervisors had
directed him, in violation of regulations, to enter the Bell Telephone toll building
during his off-duty hours. In the circumstances, Dunnam impressed me as a wit-
ness willing to tailor his testimony and I do not find his testimony reliable. Ac-
cordingly, I do not credit Dunnam's testimony with respect to the two incidents.
in question.
Leroy Brown
Employee Leroy Brown testified that "around Christmas time" 1962, he con-
versed with Lieutenant Evans at the Bell Telephone Company. With respect to this.
conversation Brown testified as follows:
Q. Now, this conversation around Christmas time, what was said and withi
whom?
A. That is when I talked about the union.
Q. (By Mr. UHLIG.) What else was said in that conversation? What did he-
say and what did you say?
A. I said, "I really don't know" I said, "it would be a good thing and it could'
not."
Q. What else was said by Mr. Evans?
A. He says, "Well, you will probably be out of a job if the union comes in."
Q. Do you recall anything else that was said, just if you can recall it, or-
was that about the extent of that conversation?
A. Something about canceling contracts, a lot of contracts, but I didn't think.
so. I said that some would and probably some would acquire contracts.
Q. But in the conversation in and around Christmas of 1962 there wasn't.
anybody present but you and Lieutenant Evans?
A. Yes.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1285
Q. Did you ask him any questions yourself about union affairs or union
activities?
A. No.
Q. What, precisely, was it that Lieutenant Evans said to you, according to
your recollection, with regard to the termination of any clients' contracts in
Kansas City?
A. In Kansas City.
Q. Yes.
A. I don't know that there was any reference to in Kansas City. He just
stated that they lost contracts.
Q. He said that they lost some contracts other places?
A. He didn't say where. He just said they lost contracts.
Q. I see. They had lost some contracts in other places?
A. Yes.
Q. And you didn't believe him, you thought they might or might not lose
contracts?
A. They could.
Q. That was your belief?
A. Yes.
Brown further testified that in April 1963 Lieutenant Evans and Lieutenant
Kiphart called on him at his home for the purpose of picking up his police com-
mission that had been issued to him while he had been in the employ of the Re-
spondent. Brown further testified that during the conversation that ensued, Lieu-
tenant Evans stated that he knew that Brown was involved with the Union, that
Brown had given a statement to the National Labor Relations Board, and that he
also knew that other guards had similarly given statements to the Board. According
to Brown's further testimony, Lieutenant Evans further commented that if Brown
desired to return to work he would give Brown a reference and he thought that it
would be a good idea that Brown go to work for a Mr. Davis in Texas or for the
Pinkerton agency. Brown further testified that during the conversation, Lieutenant
Evans made reference to the Union being "run by Communists or something like
that, the Union was a bunch of Communists."
Lieutenant Evans denied that he made the statement attributed to him by Brown.
I am unable to credit Brown's testimony with respect to either conversation. His
testimony with respect to the "Christmas time" incident revealed a singular lack of
genuine recollection, and his testimonial deficiency, as I observed it, derived not from
an inability to articulate but from absence of an actual ability to recall the details
of the conversation.
With respect to the April visit to Brown's home, Lieutenant Evans testified con-
vincingly that Brown voluntarily brought up the subject of his union activities but
he denies the remark which Brown attributed to him in his testimony. I am con-
vinced in light of the credited testimony of Lieutenant Kiphart who was present at
Brown's home during the April incident that there was some discussion of the
National Labor Relations Board but that the subject was broached initially by Brown
himself, that Lieutenant Evans confined his remarks to commenting that he was
aware of union activities among the Kansas City guard employees but that his per-
sonal knowledge and awareness of the subject was predicated upon the campaign
literature that had been passed to the employees from the Respondent and Union.
Conclusions
a. As to the conversations
In view of the foregoing determinations I find no violation of the Act flowing
from the conversations, either actual or alleged, that purportedly transpired between
Lieutenant Evans, on the one hand, and Leroy Brown and Thomas Dunnam on the
other. Neither do I find that Assistant Manager Smiddy violated the Act by any
comment or statement that he may have made during the conversation that he had
with Dunnam in his office in April 1963.
Further, viewed in the context in which the remarks occurred, I find no violation
of the Act flowing from Lieutenant Evans' inquiry to Heselton concerning Heselton's
feeling "about the union" and Lieutenant Evans' further comment that "he didn't
know" whether the Union was a good thing. These comments occurred during a
general discussion of the Union and it is not shown that the subject was initiated by
Lieutenant Evans or that it occurred in a context of Lieutenant Evans' endeavoring
to learn the identity of the union adherents among the guard contingent.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do I find Lieutenant Evans' comment during the same conversation afore-
said that "if it [the Kansas City operations] did go union that probably [the Com-
pany] would lose contracts like they did in Omaha" to be violative of Section 8(a) (1)
of the Act. There is nothing in the context of Lieutenant Evans' remarks to indicate
that the loss of contracts would flow inevitably from union victory or that the Re-
spondent would take any affirmative action in bringing about the termination of any
contract. Rather, as I view the testimony Lieutenant Evans' comment was nothing
more than a mere prediction of the economic consequences of unionization.10
However, I do view as violative of the Act Lieutenant Evans' March 5 comment
to Heselton that he would "offer to bet $5 that [the unit] didn't go union" and his
further comment that "if it didn't go union [the Company] had something cooking
up better for the boys." The latter comment, emanating from a supervisory repre-
sentative of the Company, constituted a clear inducement to Heselton to abandon
union allegiance and/or to vote against the Union in the upcoming election.
Coupled with this inducement the offer of Lieutenant Evans to wager on the out-
come of the election was clearly susceptible of an interpretation that Evans had in-
sight into action to be taken by Respondent to prevent unionization of its employees.
Accordingly, I find that Lieutenant Evans' comments to John Heselton on March 5
constituted conduct violative of Section 8 (a) (1) of the Act.
b. The correspondence
Against this background of isolated 8 (a) (1) activity and the Respondent's viola-
tion of its duty to bargain with the Union concerning the Omaha unit, the question
remains whether the letters which the Respondent distributed to each of its guard
employees in the Kansas City unit during the pendency of the Kansas City representa-
tion proceeding were themselves violative of Section 8(a)(1) of the Act and/or
constitute grounds for setting aside the election conducted among the Kansas City
employees.
The Board has stated that in considering election activities and material it will
look to the economic realities of the employer-employees relationship, and will
evaluate them in light of the entire context and circumstances in which they arise."
The Board has further held that conduct violative of Section 8(a) (1) is, a fortiori,
conduct that interferes with the exercise of a free and untrammeled choice in an elec-
tion.12 However, conduct that may "interfere with the laboratory conditions" for
a free election and thus warrant setting the election aside may not at the same time
be conduct which violates Section 8(a)( I) of the Act.13 Thus, written statements
which fall within the protection of Section 8(c) of the Act 14 may, nonetheless, by
misrepresentation arising from subtlety of expression and nicety of innuendo be
calculated to engender such confusion in the mind of the reader regarding the effects
of unionization as would preclude him from expressing his true desires in an election.
The instant case represents just such a situation. I am unable to conclude that
the isolated instance of 8 (a) (1) conduct with respect to Lieutenant Evans' March 5
conversation with employee John Heselton considered together with Respondent's
refusal to bargain with the Union over the termination of the Creighton University
contract, considered separately or together, constitute grounds for setting aside the
election among the Kansas City guard employees. Moreover, I have carefully
evaluated the correspondence which Respondent during the course of the Kansas
City organizational campaign distributed to its guard employees and I am unable
to find in any of them any threat of reprisal or force or promise of benefit, express or
implied. The communications were patently directed toward dissuading the Kansas
City employees from unionization; however, they were devoid of any implication
that the Employer would visit reprisals upon the Kansas City employees in the form
of canceled contracts if the Union prevailed, or would, conversely, reward the em-
ployees if they rejected the Union.
10 Cf. Harold Miller et al., d/b/a Miller-Charles and Company, 146 NLRB 405, and
cases cited therein
11 Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1787; Oak Manufacturing Company,
141 NLRB 1323; The Lord Baltimore Press, 142 NLRP. 128
12 Dal-Tex Optical Company, Inc , supra
13 See General Shoe Coiporation, 77 NLRB 124; Metropolitan Life Insurance Company,
90 NLRB 935
14 Section 8 (c) provides:
The expressing of any views, argument, or opinion, or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be evi-
dence of an unfair labor practice under any of the provisions of this Act , if such
expression contains no threat of reprisal or force or promise of benefit.
WILLIAM J . BURNS INT ' L DETECTIVE AGENCY, INC. 1287
In the main, the correspondence (in portions on which the General Counsel focuses
in support of the complaint's allegations) is limited, so far as proof in this record
reveals, to a factual summation of contract terminations occurring in the face of
union organizational efforts. Uniformly, the reference to contract terminations is
in the context of action taken by clients; and nowhere in the material is there any
hint of company complicity in past contract losses or is it suggested by the material
that the Company would in any way participate in bringing about future cancella-
tions if the Union prevailed in the election.
This is not a case such as Miller-Charles, supra, or Nebraska Bag Company, 122
NLRB 654, or Burlington Industries, Inc., Vinton Weaving Company Plant, 144
NLRB 245, wherein the company made threats concerning the adverse economic
consequences of unionization which adverse effects it had the capacity unilaterally
to bring about.
Nor is the instant case controlled by Haynes Stellite Company, Division of
Union Carbide Corporation, 136 NLRB 95, enforcement denied 310 F. 2d 844
(C.A. 6). There the Board found violative of Section 8(a)(1) the following
statement:
Customers are buying products on the basis of prices, delivery, and depend-
ability. The facts are that in some cases we are the sole source of supply at
present for some of our customers. We have been told that we would not con-
tinue to be the sole source of supply if we become unionized, due to the ever
present possibility of a work stoppage due to strikes or walkouts.
This statement, the Board found, was accompanied by constant references to the
probability of strikes if the union won the election. Further, the Board found that
the company had materially misrepresented the facts when it stated that "some of
[its] customers" would seek other sources of supply, whereas only one customer had
so informed the company, and that it failed to name other customers who had
assertedly similarly informed the company. Moreover, the statements were made
during a strenuous preelection campaign and were accompanied by conduct found
by the Board to be violative of Section 8(a)(1), involving threats to a leading union
adherent of loss of promotional opportunities and economic benefits because he had
supported the union, and a similar threat to an open and avowed union adherent.
While, as I hereinafter find, Respondent engaged in misrepresentation of fact by
failing fully to inform the recipients of its correspondence concerning all of the
details surrounding the circumstances of the termination of three service contracts,
the impact of this nonfeasance is measurably different from that which springs from
an overt threat of loss of business if an operation becomes unionized, as was the case
in Haynes Stellite. Moreover, here contrary to Haynes Stellite, the Respondent in
its correspondence adverts to contract terminations that, the record indicates, had
actually occurred, and, accordingly, there was no failure of proof. in the sense that
the Board in Haynes Stellite found significant . Moreover, absent here are the refer-
ences to strikes which in the cited case were so obviously telling; nor are there
present herein contemporaneous unfair labor practices of the caliber present in
Haynes Stellite.
Moreover, with respect to the correspondence in question, the Board has never, so
far as I am aware, applied a test of accuracy in determining whether statements,
whether written or oral, fall within the protection of Section 8(c). While distor-
tion of fact may be and frequently is a factor in the evaluation of campaign propa-
ganda (to which Section 8(c) has no applicability, Dal-Tex Optical Company, Inc.,
supra), the test, when statements are evaluated in the context of Section 8(a)(1),
is that laid down in Section 8(c); and the presence in material of inaccuracies may,
as in Haynes Stellite, be a relevant factor to be weighed with all others in determin-
ing whether resort has been made to threats or promises of benefit, express or im-
plied. But I know of no case which holds that statements containing misrepre-
sentation of fact perforce or per se lose the protection of Section 8(c).
In light of all the foregoing I find that the correspondence under consideration was
protected by Section 8(c) of the Act, and, accordingly, I do not find that Respondent
violated Section 8(a)(1) of the Act by engaging in said correspondence with its
employees.
However, while I find that the correspondence was not violative of Section
8(a)Q) of the Act, I am nonetheless convinced that the Respondent through in-
accuracies contained in the correspondence created impressions in the minds of its
guard employees that may have caused such confusion as to substantially interfere
with the "laboratory conditions" which the Board seeks to preserve in the conduct
of its representation elections under Section 9(c) of the Act. The Board of course
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has stated "the test of conduct which may interfere with the `laboratory conditions'
for an election is considerably more restrictive than the test of conduct which
amounts to interference, restraint, or coercion which violates Section 8(a)(1)."15
But here, in the correspondence, while adverting truthfully to the actual loss of
clients in Omaha in the face of union organizational attempts, the Respondent failed
to inform the employees that three of the contract cancellations resulted not from
the advent of the Union, as inferred, but from other factors unrelated to the Union.
Thus, the Respondent in its February 6 letter failed to apprise the employees that
the loss of the Safeway contract was due not to unionization, as the reference in the
letter to the loss of five clients in Omaha would indicate, but was due, instead, to
the cessation of any need by Safeway for guard services in light of operational
changes. Similarly, with respect to Respondent's March 28, 1963, letter asserting
that Respondent was now "down to one client in Omaha," the Respondent failed
to apprise its employees that the Kellogg Company in terminating its contract, Re-
spondent's penultimate Omaha contract, gave as the reason "poor service" and that,
accordingly, termination was not predicated upon the advent of the Union. Addi-
tionally, its final letter to its employees, dated April 9, 1963, contained the statement
"as of this weekend, there won't be any clients left in Omaha and, consequently,
there won't be any Burns guards there either because service for the very last client
in Omaha has ended. You know the story." The context of this statement clearly
implies that unionization was the cause for the contract's termination, whereas, in
point of fact, as the Respondent concedes, it had taken the initiative in terminating
the contract.
The Board has said in Hollywood Ceramics Company, Inc., 140 NLRB 221, 224:
We believe that an election should be set aside only where there has been a
misrepresentation or other similar campaign trickery, which involves a substan-
tial departure from the truth, at a time which prevents the other party or parties
from making an effective reply, so that the misrepresentation, whether deliber-
ate or not, may reasonably be expected to have a significant impact on the
election. However, the mere fact that a message is inartistically or vaguely
worded and subject to different interpretations will not suffice to establish such
misrepresentation as would lead us to set the election aside. Such ambiguities,
like extravagant promises, derogatory statements about the other party, and
minor distortions of some facts, frequently occur in communication between
persons. But even where a misrepresentation is shown to have been substan-
tial, the Board may still refuse to set aside the election if it finds upon consid-
eration of all the circumstances that the statement would not be likely to have
had a real impact on the election. For example, the misrepresentation might
have occurred in connection with an unimportant matter so that it could only
have had a de minim is effect. Or, it could have been so extreme as to put the
employees on notice of its lack of truth under the particular circumstances so
that they could not reasonably have relied on the assertion. Or, the Board
may find that the employees possessed independent knowledge with which to
evaluate the statements. [Footnote citations deleted ]
In the instant matter, potential loss of contracts and a consequent loss of wages
and employment were considerations striking at the very heart of the employment
relationship and fraught with singular, paramount, economic consequences. As a
result any misrepresentation dealing with matters so vital would of necessity have
significant impact upon the consciousness of the employee and affect his vote in the
election.
Moreover, the misrepresentations here in question, concerning, as they did, reasons
for cancellation of service contracts, related to matters peculiarly within the knowl-
edge of Respondent, and concerning which neither the Union nor the employees
could be expected to have any special knowledge. Lacking knowledge, the Union
was accordingly severely handicapped in marshaling an effective refutation of Re-
spondent's claims. Thus, even though time would have permitted the Union to
respond to the February 6 and March 28 innuendoes, the opportunity for effective
reply was significantly circumscribed. But with respect to the April 9 misrepresenta-
tion concerning the cancellation of Respondent's last contract in Omaha, the state-
ment was calculated to have the most telling effect, coming as it did at the very time
when the balloting by mail was being conducted. Thus, no time for effective reply
was accorded, even if, arguendo, the Union had been possessed of all of the facts
sufficient to frame a reply. Certainly, this communication was calculated to create
'Dal-Tex Optical Company, Inc., supra.
WILLIAM J. BURNS INT'L DETECTIVE AGENCY, INC. 1289
confusion among the Kansas City employees at the very time they were casting
their ballots; to have singular impact upon the employees' choice in the Kansas City
election; and thus to deprive them of an opportunity to vote in an atmosphere con-
ducive to an informed exercise of franchise. In the circumstances, and considering
the contemporaneous refusal in Omaha to meet and negotiate with the Union, which
refusal could reasonably be expected to have come to the attention of the Kansas
City employees, and considering further the interrogation of Heselton violative of
Section 8(a) (1) of the Act, I recommend that the election in Case No. 17-RC-4028
be set aside and a new one directed.
In recommending that the election be set aside I do not rely on the reference in
Respondent's April 3 letter with respect to the asserted relationship between Union
Representative Newman and Pinkerton Detective Agency which the Union in its
objections to election contends is a ground for setting the election aside. This ref-
erence was in response to an earlier union communication to the Kansas City em-
ployees to the effect that it represented guards in Louisville, Kentucky, and citing
benefits to be obtained by joining the Union. It is not shown that the statement in
Respondent's April 3 letter to which the Union's objection is directed constituted a
misrepresentation; moreover, it is the type of campaign material which the employ-
ees could evaluate and to which, although coming on the eve of the commencement
of an election covering a 10-day period, the Union had an opportunity to reply.
Moreover, in light of my credibility resolution respecting the general unreliability
of the testimony of Leroy Brown, I find no merit in the objection of the Union relat-
ing to Respondent's asserted statement that the "ideals and philosophy" of the Union
and its named vice president were the same as or similar to those of the Communist
Party, USA.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The conduct of the Respondent set forth in section III, above, occurring in con-
nection with the operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that in bypassing and failing to consult with the Union concerning
the termination of the Creighton University guard service contract the Respondent
unlawfully refused to bargain with the Union as the representative of its employees
in an appropriate unit in violation of Section 8(a)(5) and (1) of the Act; and as
Respondent's cessation of business in the Omaha, Nebraska, metropolitan area, fol-
lowed by less than 3 months the Union's certification; and as there is a likelihood
that in the future Respondent will resume operations in said area; I shall recom-
mend that in the event the Respondent does resume operations in the Omaha,
Nebraska, metropolitan area, as that term is defined in the Decision and Direction
of Election in Case No. 17-RC-3828, dated December 13, 1962, upon request, it
bargain with the Union as the exclusive collective-bargaining representative of its
employees, and embody any understanding reached in a signed agreement.
Having found that Respondent did not discriminatorily terminate its Creighton
University contract, but did so solely for economic reasons predicated upon substan-
tial money losses deriving from operating in the Omaha, Nebraska, area under a
single service contract, I shall order Respondent neither to negotiate with Creighton
University looking toward the resumption of said contract, nor to otherwise resume
operations in the Omaha, Nebraska, metropolitan area. Cf. Fibreboard Paper
Products Corp., supra; Carl Rochet et al., d/b/a The Renton News Record, etc.,
supra, at 297-298.
However, notwithstanding the foregoing considerations, as Respondent's decision
to terminate the Creighton University contract was taken at a time when the Union
was the certified bargaining representative of Respondent's Omaha guard employees,
and as Respondent initiated the termination but failed to consult with the Union
with respect thereto, thereby violating its bargaining obligation under the Act, I
shall, in all the circumstances, recommend that Respondent place on a preferential
hiring list Gerald King, Robert Henry, and Lee Trusdale, and, in the event Respond-
ent resumes operation in the Omaha, Nebraska, metropolitan area, as job openings
occur, it offer employment to said employees in their former or substantially equiv-
1290 DECISIONS OF NATIONAL 'L'ABOR RELATIONS -BOARD
alent jobs, and that selection, as required, be from among them on a nondiscrimina-
tory basis and before any other employees or applicants are employed. The Re-
spondent shall notify the Union and the listed employees of the establishment of
such list.
Moreover, I shall further recommend that Respondent make whole Gerald King,
Robert Henry, and Lee Trusdale for any loss of earnings suffered as a result of its
unlawful action in bypassing the Union by terminating the Creighton University
contract without consultation with the Union. See Fibreboard Paper Products Corp.,
138 NLRB 550, 554-555. While the instant case is atypical in that Respondent
cannot unilaterally reinstitute the canceled contract, and as the evidence reveals that
Respondent has been unsucessful in obtaining additional contracts in the Omaha,
Nebraska, area, the Respondent in bypassing the Union foreclosed any mutual con-
sideration of the problems attendant upon its uneconomic operations in the Omaha
area which might have led to a solution whereby operations could have profitably
continued and jobs have been preserved (see Town & Country Manufacturing Com-
pany, Inc., etc., 136 NLRB 1022, 1027) and, accordingly, as a consequence, must
bear the financial burden arising from its breach of bargaining obligation. See Esti
Neiderman et al. d/b/a Star Baby Co., 140 NLRB 678, 684; cf. Pepsi-Cola Bottling
Company of Beckley, Inc., 145 NLRB 785; N.L.R.B. v. Savoy Laundry, Inc., 55
LRRM 2285, 2286 [327 F. 2d 370] (C.A. 2); N.L.R.B. v. Adams Dairy, Inc., 322
F. 2d 553, 562-563 (C.A. 8). Backpay shall be based upon the earnings which
they normally would have received in the employ of Respondent from the date of
the termination of their employment on the Creighton University assignment to the
date of Respondent's offer of reinstatement, or their acquisition of equivalent or sub-
stantially equivalent employment elsewhere, less any net interim earnings, and shall
be computed on a quarterly basis in the manner set forth in F. W. Woolworth Com-
pany, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344.
It is further recommended that the right be reserved to modify the Recommended
Order herein if there is a substantial change in conditions in the future, or to clarify
its application to special circumstances not now apparent. Custom Quilting Corpo-
ration, 134 NLRB 51.
I shall also recommend that the election in Case No. 17-RC-4028 be set aside
and a new election directed.
Upon the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Guards Union of America is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing an employee in the exercise of
his 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.
4. All guards employed by The William J. Burns International Detective Agency,
Inc., in the Metropolitan Omaha, Nebraska, area, including regular part-time guards,
but excluding office clerical employees, professional employees, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
5. At all times material herein, the Union has been the exclusive bargaining repre-
sentative of the employees in the aforesaid appropriate unit within the meaning of
Section 9(a) of the Act
6. By bypassing the Union and failing to consult with the Union concerning the
termination of the Creighton University contract the Respondent engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) of
the Act.
7 By misrepresentations contained in correspondence distributed to its guard
employees in the Kansas City metropolitan area, and in light of contemporaneous
unfair labor practices violative of Section 8(a)(1) and (5) of the Act, as set forth
in section III, above, the Respondent engaged in conduct which requires that the
election conducted in Case No. 17-RC-4028 be set aside and a new election
conducted.
8. Except as otherwise found above, Respondent has not engaged in unfair labor
practices as charged in the complaint.
[Recommended Order omitted from publication.]