Top Security Patrol, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 46 (N.L.R.B. 1976)

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Top Security Patrol, Inc. and Daniel Gray, Kenneth
R. Puree, and Joseph Carroll. Cases 8-CA-9630,
8-CA-9641 and 8-CA-9685
September 20, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On June 10, 1976, Administrative Law Judge Rob-
ert E. Mullin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Top Security Patrol,
Inc., Cleveland, Ohio, its officers, agents, successors,
and assigns, shall take the action set forth in the rec-
ommended Order.
' Respondent's request for oral argument is hereby denied as the record,
the exceptions, and the brief adequately set forth the issues and positions of
the parties
DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN, Administrative Law Judge: This case
was heard on April 6 and 7, 1976, in Cleveland, Ohio, pur-
suant to charges duly filed and served,' and a consolidated
complaint which issued on January 13, 1976. The com-
plaint presents questions as to whether the Respondent vio-
lated Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended. In its answer, duly filed, the
Respondent conceded certain facts with respect to its busi-
' The charge in Case 8-CA-9630 was filed on November 24, 1975, in Case
8-CA-9641 on November 28, 1975, and in Case 8-CA-9685 on December
15, 1975
ness operations, but it denied all allegations that it had
committed any unfair labor practices.
At the hearing both the General Counsel and the Re-
spondent were represented by counsel. All parties were af-
forded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce relevant evidence, and to
file briefs. Both counsel presented oral argument at the
close of the hearing, but did not submit briefs.' A motion
to dismiss, made by the Respondent, is disposed of as ap-
pears hereinafter in this Decision. Upon the entire record
in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its principal
place of business located in Cleveland in that State, is en-
gaged in providing private security services. Annually, in
the course and conduct of its business, the Respondent
provides services valued in excess of $50,000 for business
enterprises located within the State of Ohio, each of which
enterprises meets a Board jurisdictional standard on other
than an indirect inflow or indirect outflow basis. Upon the
foregoing facts the Respondent concedes, and it is now
found, that Top Security Patrol, Inc., is engaged in com-
merce within the meaning of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Private Police and Security Guards Local Union No. 57,
AFL-CIO (herein Union or Local 57), is a labor organiza-
tion within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Respondent operates a small, but expanding, private
security patrol service in the Cleveland area.3 In May
1975 4 Daniel Gray, a patrolman on the staff, talked with
several of the employees with a view to organizing a union.
Shortly thereafter, President Liephart and General Manag-
er Ronald Orlowski called Gray to the company office
where the two officials interrogated Gray as to why he
wanted to organize the employees. According to Gray,
2 On May 10, 1976, the General Counsel submitted a motion to amend
transcript wherein he proposed a total of 144 corrections of the stenographic
record of the hearing The Respondent having voiced no objections to the
aforesaid motion , a review of the transcript having disclosed numerous er-
rors therein, and there appearing to be merit to this motion, it is now grant-
ed and the record is corrected in accordance therewith
7 President and principal stockholder is Roger Liephart, a young man, 33
years of age at the time of the hearing On the eve of his graduation from
high school , some 15 years ago, he suffered a broken neck in a trampoline
accident at his high school gymnasium which rendered him a paraplegic
The story, related only briefly on the record, of his subsequent recovery to
the point where , from a wheelchair, he could be self-sufficient and then, at
the age of 26, establish his own security business which, by the time of the
hearing had 50 regular and part-time employees , is a remarkable saga of
determination, initiative, and business acumen
All dates hereinafter are for 1975 unless specifically noted otherwise
226 NLRB No. 15
TOP SECURITY PATROL, INC. 47
whose testimony was credible and undenied, after ques-
tioning him as to the reasons for his interest in a union and
as to whether he was happy with his job, Orlowski finally
promised that "if I would quit talking about the union,
everything would be fine and I could work with no prob-
lems." With that understanding Gray agreed that he would
discontinue all further organizational efforts. For several
months thereafter Gray adhered to his promise and en-
gaged in no other attempt to unionize the work force. Em-
ployee Joseph Carroll testified, credibly and without con-
tradiction, that, on one occasion during that period, both
Liephart and Orlowski described Gray as "one of the bet-
ter security officers."
In October, however, Gray again became interested in a
union and he, and Carroll set up a meeting with representa-
tives of Local 57. Employee Thomas F. Sauer testified that
early in November he was in the company office when
Liephart and Orlowski were discussing the resurgent union
campaign. According to Sauer, he heard Liephart say to
Orlowski, "with regard to this union thing, it's going to
bust the company wide open" and then, as he entered the
office, Liephart asked, "What's with Joe [Carroll] and this
Union?" Sauer testified that, in -response to this question,
he disclaimed any knowledge of Carroll's union activities
and commented that the latter was interested in a private
police association. According to Sauer Liephart then said,
as to such an organization, "Well, it is still a union."
Employee Kenneth Puree testified that about November
2 he had a conversation with Sergeant Ronald Collins
about organizing a patrolmen's association or a union and
that Collins expressed his opposition to the proposal for a
union among the Respondent's employees. Puree then
asked that Collins not repeat the conversation that they
had on the subject and the latter assured him that he would
not. The next,day, however, President Liephart had Puree
report to his office and while there he interrogated Puree
about his interest in organizational activities. Puree testi-
fied that, in response to the questions of the Respondent's
president, he acknowledged that Carroll, Gray, Abner, and
Cameron were involved in the union campaign along with
him. According to Puree, Liephart then told him that the
employees should discontinue these activities and that if
they did not they "would be out the door," that "we would
be fired if we talked union ... [and] if we continue to
organize the patrolmen." Puree testified that the next time
he saw Collins, the latter disclaimed having been an infor-
mant, that Collins reiterated that if Puree continued to be
identified with the Union "you will be out the door or
fired." Collins denied that he ever told Puree that he would
be discharged for engaging in union activities, but he did
not deny or contradict any of the other testimony which
Puree gave about their discussions. Liephart was asked no
questions about this conversation when he was on the
stand. Puree's testimony as, to his exchange with the
Respondent's president is, therefore, undenied. Since Puree
was a credible witness as to this phase of his testimony, it is
now found that the conversations with both Collins and
Liephart took place in substantially the manner that he
related.'
5 The quotations in the foregoing paragraph are from Puree's testimony
On or about November 12, employee Carroll was sum-
moned to the Respondent's office where both President
Liephart and General Manager Orlowski interrogated him
as to his union activities. According to Carroll, Liephart
opened the meeting by stating that he had heard "through
the grapevine" that, Carroll was "instigating a movement
... to get°a union in and he would -not allow it . . . he
would go into bankruptcy first." When questioned as to
why he wanted a union Carroll told them that it'was be-
cause he wanted a raise and because of dissatisfaction with
certain working conditions, among them being a complaint
about Ronald Collins who had recently been promoted to
sergeant. Carroll recited how Collins had boasted before
his promotion that while working at one of their assign-
ments, an apartment house known as Horizons West, he
only worked about 10 minutes an hour in making his
rounds and that he spent the rest of the time in the apart-
ment of a girl friend who lived there. Orlowski's response
to Carroll's recitation of complaints was to tell him "I think
you are putting your nose where it doesn't belong" and
then to declare that if Carroll did not like the working
conditions he should leave. At this point, Liephart told the
employee that he had discussed the union problem with
other security companies and that they had assured him of
their full support so that Carroll would not get a job with
any of them. Carroll then asked if the Respondent had
already blackballed him. Before he received a direct an-
swer to this question, Orlowski told him, "Joe, you are
fired." Carroll protested that under the Taft-Hartley Law,
he could not be fired for such a reason. Orlowski then said,
" ... well, you are suspended." Carroll asserted that this
action was likewise a violation of Taft-Hartley. Orlowski
did not pursue this issue further, other than to tell the em-
ployee, "We will get you for causing dissent and unrest
among the troops . . . dissent between Top Security man-
agement and personnel." Before concluding the conversa-
tion Orlowski told Carroll that he wanted him to work for
the Company and against the Union. Carroll, however,
gave no assurances that he would do so.
At this time it was common practice for the patrolmen to
ride to and from assignments in a cruiser car with a co-
worker. Before the meeting ended both Liephart and Or-
lowski told Carroll that they did not like this practice,
which they characterized as the "buddy system," because
they felt that it did not promote loyalty to the Company,
that they intended to break it up, and that henceforth the
patrolmen were not to ride with other members of the force
in the cruisers. Thereafter, Carroll never again was permit-
ted to ride with another patrolman .6
On the afternoon of November 18, about eight of the
Respondent's employees met at the union hall of Local 57.
Among those present were Gray and Carroll and their col-
6 The foregoing findings, and all the quotations in this paragraph, are
from Carroll's testimony. His account was neither denied nor contradicted
by either Liephart or Orlowski Liephart testified at some length, but was
asked no questions as to this incident. Orlowski, although present at counsel
table throughout most of the hearing, was never called as a witness for the
Respondent Carroll was a credible witness In view of this conclusion and
the fact that the Respondent offered no contradictory testimony as to this
particular meeting it is now found that Carroll's testimony presented a sub-
stantially accurate account of the event in question
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leagues,,.Kenneth Puree, Mack Cameron, James Abner,
and Thomas Sauer. The meeting lasted, until about 44:30
p.m. Sauer testified that as the employees left the meeting
they found General Manager Orlowski's car parked on the
other side of the union hall. .
Subsequent to the meeting Gray was to report for duty
at 5:30 p.m.,He failed to arrive at his post at the Auburn
Bakery on schedule, thereby giving rise-to a sequence of
events that resulted in his discharge, according, to the Gen-
eral Counsel, in violation of the Act, but according to the
Respondent for cause. That issue will be discussed later
herein.
On the morning of November 19 Gray was in Liephart's
office to discuss a mistake on his pay slip. Gray testified
that while he was there Liephart told him that he knew that
Gray and Carroll were close friends and that he knew that
the two of them were spearheading a movement to start a
union. According to Gray, Liephart then told him that he
knew that there had been a union meeting the day before
and that Gray was in attendance. Gray protested that he
had not been at any such meeting the day before and that
he had been tardy because he had had car trouble in get-
ting to his assignment. Liephart concluded their discussion
with the statement that because Gray, had been late in re-
porting to work the day before there would have to be
some disciplinary action._ That afternoon Captain Ray-
mond Marlowe 7 told Gray that he had been suspended
indefinitely and that Liephart would notify him as to the
time when a hearing would be held on his case. Later that
day employee Abner had a conversation with Sergeant
Paul Sias, another supervisor in the Respondent's organiza-
tion, during which he asked Sias about Gray's suspension.
When Abner inquired whether that action had resulted
from Gray's having been late for work the preceding day,
Sias answered in the affirmative and then added that Gray
had been suspended not only for that reason but also, "for
messing around', with that damn old union." b
Abner testified that on November 21 he overheard a
conversation between Liephart and Marlowe in which the
latter referred, to what he described as Gray's "antics" and
said that he was going to fire him. According to Abner,
later he asked Marlowe what he had meant by this refer-
ence to Gray and Marlowe explained that Gray was again
involved in the activity which he "had started . . . once
before a few months back," and that "he was gonna walk
in, and fire Dan ", Abner testified that 2 or 3 days later, in
another conversation with Marlowe, the supervisor re-
ferred to both Gray and Puree as "the instigators of this
... trying to form a union." 9
7 The Respondent conceded in its answer that Captain Marlowe, Sergeant
Ronald Collins, and Sergeant Paul Sias , as well as Liephart and Orlowski,
were supervisors within the meaning of the Act
8 Sias denied that he had made such a statement to Abner However,
Abner was a plausible witness throughout his appearance on the stand and
it is my conclusion that as to this exchange he was more credible than Sias
All of the findings set forth above are based on the credible, undenied
testimony which, in the text, is attributed to Abner, Carroll, Gray, and
Sauer. The conversation which Gray had with Liephart on November 19 is
covered in greater detail, infra That portion related above is based on so
much of Gray's account of that exchange which Liephart did not deny or
contradict when he was on the stand
9 Marlowe was on the stand briefly, but was asked no questions as to this
conversation
Employee Puree testified, credibly and without contra-
diction, that on or about November 21 both Liephart and
Orlowski interrogated him on ,the subject of the Union in
the Respondent's office. According to Puree,,Orlowski re-
minded him that his tenure was very unstable because of
an earlier incident while Puree was working for the Re-
spondent and that, if anyone was. dismissed,, Puree would
be the first to go- Puree testified that Liephart then told
him that he knew that Puree was "organizing the troops
and I would stop it' or I would be dismissed . . . he didn't
want any more union activity and no more organizing of
the troops." At the hearing Liephart was asked no ques-
tions as to this particular meeting, and, as noted earlier,
Orlowski did not testify. Since Puree was credible, it is now
found that this incident occurred substantially as he de-
scribed. it.10
According to employee Abner, on or about November
13, President. Liephart asked him- if he had heard anything
about a union being organized and that he responded in
the negative: Abner further testified that, on November 26
while in Liephart's office, the latter again questioned him
about his union activities and when Liephart asked wheth-
er he had signed an authorization card he again denied that
he had done so."
Employee Mack Cameron testified that, on or about No-
vember 23, Liephart telephoned him and asked whether
Cameron had signed an authorization card. Cameron testi-
fied that before he could respond Liephart said, "I know
you signed a union card." According to Cameron he then
said to the president, "If you know, why are you asking?"
and -Liephart responded, "Because, I am not going to let a
union come into my company. If I have to ,I will let my
company slide into receivership and sell Amway Prod-
ucts." 12 Cameron's testimony was credible and it was nei-
ther denied nor contradicted by the Respondent's presi-
dent when he was on the stand.
On or about November 26,the Respondent announced
two new personnel requirements. One was that the employ-
ee probationary period was being) extended, effective im-
mediately, from 6 to 12 months. Each employee was asked
to sign an acknowledgement of the new provision. Prior to
that time an employee, who was dismissed or suspended,
was accorded a hearing on the adverse action as a matter
of right. This assurance was removed by the new rule on
probations so that thenceforward the matter of a hearing
on suspensions and, dismissals was no longer guaranteed.
Each employee was required to sign an acknowledgement
which read, in relevant part, as follows:
If I am suspended or dismissed, I understand that I
may request a "hearing" but, that management is un-
der no obligation to give me "hearing."
At that time most, if not all, of the principal union advo-
cates had substantially less than 1 year of experience with
the Respondent and, under the new rule therefore, would
10 The quotations in the above paragraphs,are from Puree's testimony.
1
Abner's testimony, as set forth above, was credible and it was in no way
denied or contradicted by Liephart when the latter was on the stand.
12 This was a reference to another business activity in which Liephart and
his wife were engaged
TOP SECURITY PATROL, INC. 49
have only the status of probationary employees for several
additional months.13 On the same day that the Respondent
announced that the probationary period was being extend-
ed it also notified the employees that any new job appli-
cants would have to sign an authorization whereby the
Company could require a polygraph examination, or any
other testing procedure it chose to use, in examining the
honesty, ability, attitude, work, and health habits of each
employee.14
B. Findings and Conclusions with Respect to the Alleged
Violations of Section 8(a)(1)
On the basis of the foregoing facts, it is now found that
the Respondent interfered with, coerced, and restrained its
employees in violation of Section 8(a)(1) of the Act by the
following conduct of President Roger Liephart: (1) His in-
terrogation, early in November, of employee Sauer as to
the union activities of employee Carroll; (2) his interroga-
tion, on or about November 3, of employee Puree as to
Puree's union sympathies and those of his coworkers, and
his threat, voiced to Puree, that unless organizational activ-
ities were discontinued the employees involved "would be
out the door" and that "we would be fired if we talked
union'"; (3) on or about November 12, his statement to
employee Carroll that he had heard "through the grape-
vine" that Carroll was "instigating a movement ... to get
a union in and he would not allow it ... he would go into
bankruptcy first"; (4) on or about November 19, by telling
employee Gray that he knew that there had been a union
meeting the previous day and that Gray had been in atten-
dance, and by telling Gray that he knew that both Gray
and Carroll were spearheading a movement to organize a
union, thereby giving the impression that the Respondent
was engaged in unlawful surveillance of its employees' or-
ganizational efforts; (5) on or about November 21, by in-
terrogating employee Puree about his union activities and
then telling the employee that there was to be no more
"organizing [of] the troops" that Puree was to stop it or he
"would be dismissed . . . he didn't want any more union
activity and no more organizing of the troops"; (6) on No-
vember 13 and 26, by interrogating employee Abner about
union activities among the employees and whether Abner
had signed an authorization card; (7) on or about Novem-
ber 23, by telephoning employee Cameron to ask whether
Cameron had signed an authorization card and then telling
the employee "I know you signed a union card," thereby
giving the impression of surveillance of employee union
activities; and (8) during the same conversation by telling
that employee "I am not going to let a union come into my
company. If I have to, I will let my company slide into
receivership and sell Amway products....." 15
13 All of the six employees who testified in this case were hired subsequent
to January 1975. Thus, Abner, Carroll, and Sauer were hired in February,
Gray in March, Cameron in May, and Puree in July
14 Employee Carroll testified, credibly and without contradiction, that be-
fore the foregoing changes were announced on November 26 an employee
had a right to a hearing in the event of his suspension or dismissal , provided
he made the request in writing, and that prior to that time the Respondent
had no requirements for he detector or polygraph testing for the purpose of
ascertaining the honesty or veracity of its employees
The Respondent further violated Section 8(a)(1) by the
conduct of Sergeant Paul Sias, on or about November 19,
when he told employee Abner that Gray had been sus-
pended for being late for work "and for messing around
with that damn old union;" by the conduct of Captain
Raymond Marlowe in a conversation with employee Ab-
ner on November 21, in referring to what he described as
Gray's "antics," whereby Gray was again involved in what
"he had started . . . once before a few months back," an
obvious reference to Gray's abortive union effort the pre-
ceding May, and then adding that the Respondent was
going to fire that employee; and by the action of Sergeant
Ronald Collins, during a conversation with Puree early in
November, during which he threatened that if Puree and
his coworkers did not discontinue their union activities
they "would be out the door" and "would be fired if [they]
talked union ... [and continued] to organize the patrol-
men."
The Respondent also violated Section 8(a)(1) of the Act
by the following conduct of General Manager Raymond
Orlowski: (1) On or about November 12, by interrogating
employee Carroll as to his union activities, telling the em-
ployee that if he did not like the working conditions he
should leave, then telling the employee that he was sus-
pended and fired and when Carroll pointed out that this
action would violate the Taft-Hartley Act, then declaring
to the employee "We will get you for causing dissent and
unrest among the troops ...,dissent between Top Security
management and personnel"; and (2) on or about Novem-
ber 21, by interrogating employee Puree, along with Presi-
dent Liephart, about that employee's union activities and
at the same time warning Puree that in the event anyone
was laid off Puree would be the first to go.
At the meeting which Orlowski and Liephart had with
employee Carroll on November 21, the Respondent's offi-
cials told the employee that they felt that the practice
whereby patrolmen frequently rode with coworkers in
cruiser cars, characterized by them as the "buddy" system,
did not promote "loyalty" to the Company and-that there-
after it would be forbidden. As a result, Carroll never again
was allowed to ride with another patrolman. Under the
circumstances present here, it is apparent, and it is now
found, that this action as to Carroll was taken for the pur-
pose of limiting his contacts with fellow workers and to
lessen the prospects for employee discussion of union or
concerted activities. Consequently, this work rule must be,
and it now is, held discriminatory and a violation of Sec-
tion 8(a)(1). M.S.P. Industries, Inc., d/b/a The Larimer
Press, 222 NLRB 220 (1976).
On November 26 the Respondent extended the proba-
tionary period for all employees from 6 months to 12
months and also eliminated the right of any employee to
secure a hearing from the management on a suspension or
15 The Respondent was in severe financial straits at the time of the organi-
zational campaign and from data produced at the hearing it appears that for
the year ending October 31, 1975, the Company had a net loss of over
$16,000. Nevertheless, Liephart's declaration that in order to keep a union
out he would let his company "slide into receivership" was not "a reason-
able prediction based on available facts" (N L.R.B. v Gissel Packing Co.,
Inc, 395 U.S. 575, 618-619 (1969) ), but was a threat "of economic reprisal
to be taken solely on his own volition" N L.R B. v. River Togs, Inc, 382
F.2d 198, 202 (C.A. 2, 1967)
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge . That same day, it announced a new requirement
making it mandatory that job applicants agree that the
Company could use polygraphs or any testing procedure it
chose to ascertain,, inter alia, the employees ' attitude. In
view of the background whereby, for a period of almost a
month, the Respondent had engaged in a continuing series
of incidents in which it had interfered , restrained, and
coerced the employees as to their statutory right to engage
in concerted or protected activity, it is now found that,
under the circumstances present here; the Respondent had
a discriminatory objective in introducing the use of lie de-
tectors in the hiring process. Consequently , this action is
also found to have violated Section 8 (a)(1) of the Act.
C. The Alleged Violations of Section 8(a)(3); Findings and
Conclusions with Respect Thereto
1. Gray
Daniel Gray was hired as a patrolman in, March. In May
he became interested in securing a union for the Respon=
dent 's employees but, as found above, President Liephart
and General Manager Orlowski dissuaded him from con-
tinuing his organizational efforts, with Orlowski promising
him that if he "quit talking about the union , everything
would be fine and [Gray ] could work with no problems."
For about 5 months subsequent to that time, Gray re-
frained from any further attempts at organizing his co-
workers. During the summer of 1975, in conversations with
employee Carroll, both Liephart and Orlowski character-
ized Gray as "one of [their] better security officers."
In mid-October, Gray and Carroll contacted a represen-
tative of Local 57. Thereafter , he and Carroll solicited the
employees to sign authorization cards and arranged for a
meeting of all the Respondent's employees at the union
hall on November 18. The union meeting lasted until about
4:30 p .m. Gray was scheduled to report for work at the
Auburn Bakery at 5:30 p .m. that day. He failed to arrive
on schedule and did not reach the bakery until 6 : 30 that
evening. Captain Raymond Marlowe came ; up to the, scene
as Gray arrived and, in explanation of his tardy appear-
ance, Gray told his superior that he had run out of gas
when driving to work.
Liephart testified that by the following day, when he
talked with Gray, he had learned that the employee had
not run out of 'gas as he had reported , but that "he and a
number of other fellows was at a meeting." It has already
been found that during this same conversation Liephart
told the employee that he knew that Gray and Carroll were
spearheading a, drive to organize the employees, and that
rather than have a union 'he would let the Company go
bankrupt . At the hearing in the present case Liephart ac-
knowledged that at the time "We knew he [Gray] was a
union activist."
That afternoon Captain Marlowe told Gray that he had
been suspended indefinitely . That same afternoon, Ser-
geant Paul Sias told employee Abner that Gray had been
suspended for being late for work "and for messing around
with that damn old union." On November 21, in a coiiver-
sation with employee Abner, Captain Marlowe referred to
Gray as having become involved again in the activity
which Gray had started once before, an obvious reference
to Gray's organizational efforts the preceding May, and
that "he was gonna walk in and fire -Dan." A short while
later, in another conversation with Abner , Marlowe re-
ferred to Gray -and Kenneth Puree as the "instigators of
this .. . union."
On November 23, the Respondent held a hearing on.
Gray's suspension at which Liephart , Orlowski ,- Marlowe,
Sias, and Collins were in attendance . Gray was asked the
reason for his tardy appearance at the Auburn Bakery on
November 18 and he repeated the story he had originally
told; namely , that his car had run out of gas and delayed
his arrival . At the end of the hearing he was informed that
the Respondent was terminating him, effective at once.
At the hearing in the instant-case , President Liephart
testified that the Auburn Bakery job was a new account
that had just been secured and that November 18 was the
first day that a Top Security Patrol was to be stationed
there. According `to Liephart, it was, therefore , exceedingly
embarrassing when Gray failed to appear on schedule and
that, as a result he was very fearful that a customer would
be lost because of Gray's tardiness. Liephart 's testimony as
to November ' 18 being the critical first day of servicing the
Auburn Bakery , however, was not corroborated by any
other testimony or evidence which . the-Respondent offered.
Moreover , on rebuttal the General Counsel established
that, contrary to Liephart 's testimony, the Respondent's
time records indicated that the Respondent started its pro-
tective service at the Auburn Bakery on November 17,
rather than November 18. It was also stipulated by counsel
that, on four separate occasions after November 18, three
different patrolmen assigned to the Auburn Bakery job
were tardy for periods from 15 to 90 minutes but that none
of them was ever disciplined.16
Several employees 17 testified to various occasions when
either they, or their colleagues , had been late for work and
had never been disciplined . It is evident that before Gray's
termination the Respondent' had no rule which provided
that tardiness was to be penalized with the sanction of im-
mediate ' dismissal . At the hearing, Liephart testified that
before the decision was made in Gray's case he and Mar-
lowe had discussed other complaints about Gray including
the alleged misuse of a radio telephone for personal calls
and the wasting of official duty time at a restaurant where,
purportedly, Gray had a girl friend who was ' a waitress. It
did not appear, however, that these charges were ever
brought to Gray's attention . It is my conclusion that the
latter complaints were afterthoughts on the Respondent's
part and had no connection with Gray 's discharge.
On the basis of the foregoing findings , particularly, the
Respondent's extreme antipathy to the Union, its knowl-
edge that Gray was, as Captain Marlowe described it, one
of the "`instigators," and Liephart's charge that Gray and
Carroll were spearheading a drive to organize the employ-
ees, the fact that Gray had a good work record and during
the summer had been described by both Liephart and Or-
16 These were Edmond D . Staggs, Sr, on December 19, Jay Wyatt on
January 5 , 1976; J. Farnsworth on January 7, 1976; and Jay Wyatt on
January 16, 1976
17 James Abner , Thomas Sauer , and Kenneth Puree
TOP SECURITY PATROL, INC. 51
lowski as one of their better security officers, and the dis-
crepancies in Liephart's testimony about the Auburn Bak-
ery job as having started on November 18 when Gray was
scheduled to report for work, whereas the fact was that the
service had begun on the preceding day, it is now found
that the reason given by the Respondent for Gray's termi-
nation was a pretext and that the real motive was Gray's
indentification with the union campaign. Consequently, it
is now found that Gray's dismissal was discriminatory and
a violation of Section 8(a)(3) and (1) of the Act.
2. Puree
Kenneth Puree was hired as a patrolman and investiga-
tor in July. He was terminated on November 25, according
to the General Counsel for discriminatory reasons, but ac-
cording to the Respondent for cause. Puree did not have an
unblemished employment record. In August he had been
involved in an incident which caused the Respondent to
discharge him,18 but, after Puree secured counsel and ap-
pealed to Liephart, the latter reemployed him in September
and placed him on what Liephart characterized as "strict
probation."
Puree, along with Gray and Carroll, was active in the
organizational campaign among the Respondent's patrol-
men and investigators. He credibly testified that by mid-
November he had secured authorization cards from four of
his coworkers. Early in November, as has been found earli-
er herein, he was warned by President Liephart that he and
his colleagues should stop their organizing activities and
that if they did not, they would be fired "if [they] talked
union" and if they "continue[d] to organize the patrolmen
...." The next day, Sergeant Collins, his immediate supe-
rior, cautioned him that if Puree persisted in his organiza-
tional activities he would be "out the door or fired."
Puree was at the union meeting on November 18. On or
about November 21, he was called into Liephart's office,
where the Respondent's president and General Manager
Orlowski had another discussion with him about his union
efforts. As has been found, supra, at that time Liephart
charged him with "organizing the troops" and told him
that he should stop this activity or be dismissed. Liephart
"didn't want any more union activity and no more organiz-
ing of the troops." Orlowski was even blunter in reminding
Puree that he was on a very rigid probation since being
reemployed and that, in case of any retrenchment, Puree
would be the first one to be dismissed.
During this period, Puree was on patrol duty at an apart-
ment house known as Horizons West. About 4 a.m. on the
night of November -22-23, Puree observed Sergeants Sias
and Collins in the building. When detected by Puree, they
told him that they merely happened to be in the area and
had come inside to get warm.
On November 25, Liephart called Puree to his office
is On or about August 2, Puree had intervened in a domestic argument
which, by coincidence, he noticed while returning to the company head-
quarters with employee Gray During the course of his officious interven-
tion at the scene of what Appeared to be a husband and wife quarrel, and
while endeavoring to apprehend the husband, Puree discharged his pistol in
the air. Gray wrote a very critical report on Puree's conduct- and immedi-
ately thereafter Puree was discharged
where the employee was confronted by Liephart, Orlowski,
and Collins. Liephart questioned Puree about the accuracy
of his logsheets for the night of November 22-23, on the
ground that Sergeant Collins reported that much of the
time that Puree was purportedly on patrol duty he was
actually in the security office at Horizons West, and mak-
ing personal telephone calls from that location. In Collins'
report to Liephart, given at this meeting, the sergeant stat-
ed that Puree's telephone calls were monitored by the
maintenance man at Horizons West who reported that Pu-
ree was "talking about union activities." Liephart told Pu-
ree that although the Company had not bothered about
three or four other prior incidents, including one report
from the Cleveland police that he had been found asleep at
his post on one of his previous assignments, at this point
Puree would have to be terminated. Puree credibly testified
that until the meeting with Liephart, Orlowski, and Collins
on November 25 he had not been criticized or warned by
the Company's officials at any time subsequent to his
reemployment in September.
The Respondent's reason for Puree's dismissal was un-
convincing. Puree was, undoubtedly, a marginal employee.
Nevertheless, until he became involved with the Union the
Respondent had manifested a willingness to keep him on
the force. Although Liephart asserted at the time of his
dismissal that there were numerous earlier complaints
about his work, it was not until Puree became actively as-
sociated with the union campaign that the Respondent
considered them a matter of consequence. The question to
be resolved here is not whether there was cause for Puree's
dismissal, but what was -the motivating reason. Viewed in
the light of the numerous comments made to him by Presi-
dent Liephart, General Manager Orlwoski, and Sergeant
Collins, all of them concerned with his affiliation with the
union campaign and worded in the bluntest of threats, it is
now found that whereas the Respondent may have had
cause for dissatisfaction with some of his work, as the
Court of Appeals for the Third Circuit observed in a some-
what similar case, "it apparently became intolerable only
after he had joined the union." N.L.R.B. v. Electric City
Dyeing Co., 178 F.2d 980, 983 (C.A. 3, 1950). Accordingly,
it is now found that the motivating cause for his termina-
tion was his identification with the organizational efforts of
the employees and not the reason assigned by the Respon-
dent. By his discharge, therefore, the Respondent violated
Section 8(a)(3) and (1) of the Act. -
3. Carroll
Joseph Carroll was hired in February as a patrolman
and investigator. At the end of 3 months, a raise of 10 cents
an hour was customarily given a new employee. At the end
of that period, however, Carroll received a raise of 25 cents
an hour because of the Respondent's satisfaction with his
work. About 2 months later, Carroll asked for another
raise, but Liephart told him that it would be impossible to
pay him any more because of the Company's financial
straits. Sometime later, Ronald Collins, a coworker, was
promoted to sergeant on the force. Liephart testified that
he found that Carroll was very disappointed about not
being selected for the supervisory opening to which Collins
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was appointed . At the hearing, President Liephart ac-
knowledged that he had a high regard for Carroll 's ability
as a private policeman.
Carroll and Gray were the two most active union spon-
sors among the Respondent 's employees . Both had gone to
the union headquarters in October to solicit the help of
Local 57. Thereafter they engaged in a sustained effort to
secure authorization cards from their coworkers and to in-
duce them to attend the union meetings. Carroll's organi-
zational activities came to the Respondent 's attention early
and resulted in his being summoned to a meeting with
President Liephart and General Manager Orlowski. As
found above , Liephart told him at this time that he had
heard that Carroll was "instigating a movement . . . to get
a union in and he would not allow it...." During this
conversation , Liephart pointed out to the employee that he
had already discussed his case with other security compa-
nies and that because of what he had told them Carroll
would not be able to secure work elsewhere . During their
meeting, Orlowski at first told Carroll that he was suspend-
ed, or fired, for his union activities , and when the employee
pointed out to him that such action was forbidden by the
Taft-Hartley Act, Orlowski then predicted that "We will
get you for causing dissent and unrest among the troops."
Before the conclusion of the conference , Respondent's of-
ficials placed in effect a rule, already found to be discrimi-
natory and a violation of Section 8(a)(1), whereby Carroll
was forbidden to accompany any other employee in a
cruiser car during working , hours.
Carroll was never discharged , but on December 8 he was
suspended . The facts in connection with this incident are
set forth below.
It is evident from the record that for some period of time
there was considerable antipathy between Carroll and Ser-
geant Collins. Puree and Sauer testified to several occa-
sions when Collins told them and other employees that
Carroll was a "troublemaker" and that he [Collins] was
going "to take care of him ...." At the hearing Liephart
acknowledged that he, too, heard that Collins had made
threats about what the latter planned to do with Carroll.
Early on the morning of December 7, when Carroll was
off duty, he and his friend Gray were in a restaurant fre-
quented by the Respondent 's employees when Collins and
another individual entered the restaurant . Collins was in
uniform and armed . Very shortly, sharp words passed be-
tween the two and Collins asked that Carroll step outside.
Blows were exchanged . James Harris, a friend of Collins,
who was present, testified that Carroll was the aggressor.
When on the witness stand , however, Collins acknowl-
edged that in a prehearing affidavit he had conceded that,
before the combatants were separated , he himself had a
headlock on Carroll.
On December 8, Orlowski telephoned Carroll and told
him that he was being suspended indefinitely for fighting
with Collins . Carroll protested' that he was only trying to
defend himself and asked whether Collins was also being
suspended . Orlowski told him that no action was being
taken against Collins and that if Carroll had anything to
say he could submit a report in writing.
On February 11,.1976, Carroll , accompanied by Gray as
his witness , reported to Orlowski 's office for a hearing on
his protest about being suspended . After Gray had related
his account of what had occurred on the day in question,
Orlowski told Carroll, "Joe, I will reinstate you if you will
drop your lawsuit against us with the National Labor Rela-
tions Board." Carroll declined to offer him that assurance.
On February 15, President Liephart telephoned Carroll,
stated Orlowski should not ,have conditioned his reinstate-
ment on dropping the unfair labor practice charges, and
told him that "`as of now, you are reinstated ." Carroll did
not answer immediately for at the time he had other em-
ployment. On February 20, he delivered to the Respondent
a letter of resignation that was effective as of March 5,
1976.
Liephart testified that he was on vacation - at the time
Orlowski suspended Carroll and that the general manager
had taken the action on his own , although upon his return
from vacation he ratified the suspension which Orlowski
had imposed . Captain Marlowe was called by the General
Counsel as an adverse witness and testified that he was the
one that should have taken action against Carroll and any-
one else involved in the fight , but that it was Orlowski who
had done so . According to Marlowe , before suspending
Carroll, Orlowski conceded to him that he did not know
what happened in the altercation between the two, that he
(Marlowe) recommended that statements be secured from
both men and that nothing be done thereafter until Liep-
hart returned from his vacation . Marlowe testified that he
emphasized to Orlowski that, if both men were at fault,
both should be suspended.
Orlowski, of course, did not wait to hear Carroll's side of
the story. From Marlowe 's testimony it appears that Or-
lowski suspended Carroll at a time when he himself readily
acknowledged to a colleague that he did not know what
occurred . As indicated earlier in this Decision , Orlowski
never appeared as a witness during the hearing toyexplain
his position as to this or any other issue in the case.
When on the stand as witnesses both Collins and Carroll
appeared to be hot-tempered individuals who would wel-
come an opportunity to settle differences with their fists.
Marlowe, the immediate superior , proposed that both of
them be heard before any action was taken and that if both
were at fault then both should be suspended . Orlowski,
however, made no effort to follow this , judicious course. He
immediately suspended Carroll and took no action at all
against Collins . Only a short while before , after engaging in
an interrogation of Carroll as to his union sympathies, Or-
lowski had been dissuaded from discharging the employee
for his union activities only by Carroll 's bold declaration
that this was forbidden by the Act . Thereafter , Orlowski
predicted "We will get you for causing dissent and unrest
among the troops ." It is apparent that Orlowski utilized the
opportunity presented by the dispute between Carroll and
Collins to fulfill this prediction and singled,out Carroll for
suspension while taking no action against Collins . It is now
found that, in so doing, Orlowski was motivated by his
animus against the Union and its adherents , rather than by
any desire to ascertain the merits of the dispute between
Carroll and Collins. Consequently, the suspension of Car-
roll must be, and is, found discriminatory and a violation
of Section 8(a)(3) and (1) of the Act on the part of the
Respondent.
TOP SECURITY PATROL, INC. 53
It was also a violation of Section 8(a)(1) of the Act, for
General Manager Orlowski on February 11, 1976, to con-
dition Carroll's reemployment on the employee's with-
drawal of his unfair labor practice charge against the Re-
spondent.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization, all within the meaning of the
Act.
2. By discriminating in regard to the hire and tenure of
Daniel Gray, Kenneth Puree, and Joseph Carroll, thereby
discouraging membership in the Union, the Respondent
has engaged in and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
3. By interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging
in, unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it will be recommended that the
Respondent be ordered to cease and desist therefrom and
to take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent discriminatorily ter-
minated Daniel Gray and Kenneth Puree and discrimina-
torily suspended Joseph Carroll, it will be recommended
that the Respondent be ordered to offer Gray and Puree
immediate and full reinstatement without prejudice to their
seniority or other rights and privileges, and make them and
Carroll whole for any loss of earnings they may have suf-
fered from the time of their discharge or suspension to the
date of the Respondent's offer of reinstatement to Gray
and Puree and to the date of Carroll's declination of rein-
statement.19 The backpay for the foregoing employees shall
be computed in accordance with the formula approved in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon computed in the manner and amount pre-
scribed in Isis Plumbing & Heating Co., 138 NLRB 716,
717-721 (1962). It will also be recommended that the said
Respondent be required to preserve and, upon request,
make available to the Board or its agents, payroll and other
records to facilitate the computation of backpay due.
19 On February 15, 1976, President Liephart told Carroll that he could
return to work immediately . At the time Carroll was employed elsewhere.
On February 20, Carroll wrote the Respondent that he would resign effec-
tive on March 5. The Board has held that where a discrinunatee is employed
elsewhere at the time of a reinstatement offer, the offer should accord the
employee the right to give his new employer reasonable notice, up to 2
weeks , before returning to work for his former employer. Block -Southland
Sportswear, Inc, Southland Manufacturing Company, Inc., 170 NLRB 936,
981-982 (1968) enfd. 420 F.2d 1296 (C.A.D C, 1969); Thermoid Company,
90 NLRB 614, 616 (1950) But see N L R.B. v. Betts Baking Co., 428 F 2d
156, 158-159 (CA. 10, 1970).
Since "a discriminatory discharge of an employee .. .
goes to the very heart of the Act" (N.L.R.B. v. Entwistle
Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941) it will be recom-
mended that the Respondent be ordered to cease and de-
sist from infringing in any manner upon the rights guaran-
teed in Section 7.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
there is issued the following:
ORDER 20
Respondent, Top Security Patrol, Inc., Cleveland, Ohio,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, suspending, or otherwise discriminating
against any employee because of activity on behalf of, or
membership in, Private Police and Security Guards Local
Union No. 57, AFL-CIO, or any other labor organization.
(b) Interrogating any employee concerning that indivi-
dual's union activity, or that of other employees, in a
manner constituting a violation of Section 8(a)(1) of the
Act.
(c) Threatening its employees with loss of jobs or closing
its business if a majority become members of, or assist, a
labor organization.
(d) Instituting discriminatory changes in its working
rules because of employee interest in unionization.
(e) Giving its employees the impression that it is engag-
mg in surveillance of their union activities.
(f) Conditioning the reinstatement of any employee, or
the enjoyment of any right conferred by the National La-
bor Relations Act, on that employee's withdrawal of unfair
labor practice charges.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their
own choosing, or to engage in concerted activities for the
purpose of collective bargaining or other mutual aid, or to
refrain from any or all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Daniel Gray and Kenneth Puree immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges and make them and Joseph Carroll whole in the man-
ner set forth in the section of the Decision entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records neces-
20 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary, or appropriate , to analyze the amount of backpay due
under the terms of the recommended Order.
(c) Rescind the discriminatory work rules , issued on No-
vember 26 , 1975, extending the probationary period for
employees and providing for the use of he detector tests. 21
(d) Post at its office in Cleveland, Ohio, copies of the
attached notice marked "Appendix." 22 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 8, after being duly signed by the Respondent 's author-
ized representative , shall be posted by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered , defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 8, in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
21 Of course , the vice of the foregoing rules was the circumstance of their
promulgation which made it clear that they were being issued in retaliation
for the employees' involvement with the Union Absent such circumstances,
the Respondent is free to issue any work rules of a nondiscriminatory char-
acter that it chooses to require
22 In the event the Board 's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading, "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in Private Po-
lice and Security Guards Local Union No. 57, AFL-
CIO, or any other union by discharging , suspending,
or otherwise discriminating against our employees be-
cause of their union or concerted activities.
WE WILL NOT interrogate any employee concerning
that individual's union activity, or that of any other
employees, in a manner constituting a violation of
Section 8(a)(1) of the Act.
WE WILL NOT threaten our employees with loss of
jobs or the closing of our business if a majority be-
come members of , or assist, labor organizations.
WE WILL NOT institute discriminatory changes in the
working rules for our employees and WE WILL rescind
the rules issued on November 26, 1975, involving the
probationary period for employees and the use of lie
detector tests.
WE WILL NOT give our employees the impression that
we are engaging in surveillance of their union activi-
ties.
WE WILL NOT threaten our employees with any form
of reprisal or loss of privileges because of their mem-
bership in, sympathy for, support of, or activity on
behalf of, any labor organization.
WE WILL NOT condition the reinstatement of any em-
ployee, or the enjoyment of any right conferred by the
National Labor Relations Act, on that employee's
withdrawal of unfair labor practice charges.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of their
right to self -organization, to form, join , or assist the
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 mutu-
al aid or protection, or to refrain from any or all such
activities.
WE WILL offer Daniel Gray and Kenneth Puree im-
mediate and full reinstatement to their formerjobs or,
if those jobs no longer exist, to substantially equiva-
lent positions , without prejudice to their seniority or
other rights and privileges , and WE WILL make them
and Joseph Carroll whole for any loss of pay suffered
as a result of the discrimination against them.
Top SECURITY PATROL, INC.