Walter Kidde, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1970

185 N.L.R.B. 1011 (N.L.R.B. 1970)

WALTER KIDDE, INC.
Walter Kidde , Inc. (Globe Security Systems) and
Local No . 8, International Union of Police and
Protection Workers, IWA. Case 5-CA-4531
October 13, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On May 22, 1970, Trial Examiner Sidney Sherman
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision together with a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts
the findings,' conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the Recommended
Order of the Trial Examiner, and hereby orders that
the Respondent, Walter Kidde, Inc. (Globe Security
Systems), Baltimore, Maryland, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
' These findings and conclusions are based , in part, on credibility
determinations of the Trial Examiner, to which the Respondent has
excepted Having carefully reviewed the record, we conclude that the
Trial Examiner 's credibility findings are not contrary to the clear prepon-
derance of all the relevant evidence . Accordingly, we find no basis
for disturbing those findings Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C A. 2).
TRIAL EXAMINER'S DECISION
1011
SIDNEY SHERMAN, Trial Examiner: Copy of the original
charge herein was served on Respondent on October 16,
1969,' the complaint was issued on January 5, 1970, and
the case was heard on February 3 and 4, 1970. The issues
litigated involved alleged violations of Section 8(a)(1) and
(3). After the hearing briefs were filed by Respondent
and the General Counsel.
Upon the entire record' including observation of the
witnesses' demeanor, the following findings and conclusions
are adopted:
1. RESPONDENT'S BUSINESS
Walter Kidde, Inc.,' herein called Respondent, is a Dela-
ware corporation, which, through one of its divisions, Globe
Security Systems, furnishes guard services to firms in at
least 28 States of the United States. The principal office
of Globe Security Systems is in Philadelphia, Pennsylvania.
Respondent annually derives more than $50,000 from guard
services furnished to firms outside Pennsylvania. Respondent
is engaged in commerce under the Act.
II. THE UNION
Local No. 8, International Union of Police and Protection
Workers, IWA, hereinafter called the Union, is a labor
organization under the Act:
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondent violated Section 8(a)(1) by interro-
gation, threats, confiscation of union cards, and surveillance
of union activities.
2. Whether Respondent violated Section 8(a)(3) and (1)
by the discharge of eight employees.
A. Sequence of Events
Respondent provides guard service to plants throughout
the United States. During 1969, in the Baltimore area
it employed about 1501411-time and part-time guards at
about 33 plants. It admittedly experienced considerable
difficulty in retaining competent guards and during 1969
had a turnover well in excess of 100 percent.
Early in January, the Union launched an intensive cam-
paign to organize Respondent's guards. They were visited
at their stations by Union Agent Keller, who passed out
cards and eventually obtained about 100 signed cards. Late
in February, there was a shakeup in top management
at Respondent's Baltimore branch, the old manager, Taylor,
being replaced by Halsted . During the ensuing months
the latter admittedly engaged in extensive interrogation
of the guards about Keller 's visits to their stations. In
' All dates herein are in 1969, unless otherwise stated
2 For corrections of the transcript and certain rulings on evidence„ see the
order March 25 and April 20, 1970
' Respondent 's name appears as amended at the hearing
185 NLRB No. 139
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the latter part of April, Sullivan, who had signed a Union
card and solicited others, was terminated. In September
and October, seven more guards who had signed union
cards quit and were discharged under circumstances dis-
cussed below. None of them has been rehired.
B. Discussion
1. Respondent's union animus
Apart from the evidence of specific violations discussed
below, the General Counsel sought to show Respondent's
union animus through the testimony of De Carlo, who
was assistant manager at Respondent's Baltimore operation,
from about July 1, 1968, until early January. The manager
at that time was Halsted's predecessor, Taylor. DeCarlo
insisted that it was the policy of Respondent's top manage-
ment, albeit not that of himself or Taylor, to discharge
any employees involved in union activity, and that, upon
learning that Sullivan was engaged in union activity that
was so widespread that it was likely to come to the attention
of higher management, Taylor resorted to the device of
suspending Sullivan for one week, in the hope that this
would placate his superiors, if they ever learned the facts.
DeCarlo added that, upon quitting Respondent's employ
in January, he was told by Forgey, a management representa-
tive, who at the time had some supervisory authority over
the Baltimore branch manager,' that anyone who signed
a union card, went to the National Labor Relations Board
or filed a claim for workmen's compensation was a trouble-
maker and should be terminated, and that Respondent
"would sooner close the Baltimore operation than allow
a union." The witness added that he and Taylor received
frequent reports from Garcia, who was then a guard lieuten-
ant, about the identity of union adherents, with the recom-
mendation that they be discharged, which recommendations
were ignored because of Taylor's lack of sympathy with
Respondent's antiunion policy.
Forgey categorically denied that he made any of the
foregoing remarks ascribed to him, professed to be unaware
of any anitunion policy on Respondent's part, and denied
that he, himself, had such a policy. However, Halsted,
who was Forgey's subordinate, admitted that Respondent
preferred to remain unorganized In view of this, as well
as demeanor, and the apparent absence of any partisan
interest on his part in the proceeding,' DeCarlo's version
is credited.
' This finding as to Forgey's then authority with regard to the Baltimore
office is based on his own testimony
' There was no contradiction of DeCarlo's testimony that he left
Respondent's employ voluntarily, nor was there any attempt to show
that he had any reason to testify falsely against Respondent
While he had some difficulty in explaining why Taylor suspended
Sullivan, and not any of the other guards whom Garcia reported to
be involved with the Union, DeCarlo finally did furnish a plausible
explanation of the matter, and I regard his initial difficulty as due
to failure to grasp fully the implications of the questions put to him
Respondent would impeach his credibility on the ground that its records
do not support DeCarlo's account of a suspension of Sullivan, but show
only that he was "discharged" on August 21, 1968, for failing to report
for duty, his last day of work prior thereto being August 3 However,
Respondent conceded that its records show that Sullivan was "rehired"
It is concluded, in any event, that, whatever may have
been Forgey's understanding of Respondent's policy, it was
admittedly Halsted's view that Respondent did not want
its employees organized by a union.
It is further found, on the basis of Sullivan's unchallenged
testimony, that on March 23 he was visited at his station
by guard captain Garcia, an admitted supervisor, who,
after asking if any union representative had solicited there,
warned that any guard who signed a card or solicited
for the Union would be discharged 6
2. The 8(a)(1) violations
Jenkins, a former guard, testified that about 2 months
before he left Respondent's employ Captain Garcia asked
him if he knew about Sullivan's union activities and offered
the witness a promotion if he would report on the union
activities of other guards. According to Jenkins, Garcia
pointed out to him that, if the Union succeeded in organizing
the guards, Respondent would have to raise the guard's
pay rate from $1 69 to $2 per hour, which would leave
little profit for Respondent. Garcia denied that there was
any such conversation, and Respondent would impeach
Jenkins' credibility because of the inherent improbability
of any interrogation about Sullivan occurring, as Jenkins
insisted, about 2 months before he quit Respondent's employ.
Its records show that such quit occurred on August 1.
If the Garcia incident happened 2 months earlier, that
would place it on June 1, about a month after Sullivan's
discharge, which occurred late in April Respondent con-
tends that there would have been no point to Garcia's
interrogating Jenkins about Sullivan's union activity a month
after his discharge.' However, while tending to show that
Jenkins was mistaken as to the date of the incident, the
foregoing circumstance does not require that his testimony
about the substance of Garcia's remarks be rejected I
was more favorably impressed by Jenkins' demeanor then
by Garcia's. Moreover, Garcia had a more obvious,
partisan interest, since he was at the time of the hearing still
a supervisor for Respondent, whereas Jenkins was not
shown to have been a union adherent or to have any other
interest in the outcome of the proceeding. His testimony
that he quit Respondent's employ voluntarily was not
contradicted, nor was there any attempt to show that he
bore Respondent ill will for any reason. Accordingly, while
I find that he was mistaken as to the date of the incident, I
credit his testimony as to the other aspects thereof and find
that Garcia interrogated him about Sullivan and offered
him an inducement to engage in surveillance of other
on August 23, 1968, and Sullivan himself averred that he was "suspended"
for I week in June or July 1968 This was confirmed by Garcia's testimony
that Sullivan was suspended some time in 1968 Accordingly, it is found
that there is no necessary conflict between the "discharge-rehire" notations
in Sullivan's record and the mutually corroborative testimony of DeCarlo,
Sullivan, and Garcia concerning a suspension
' No violation was alleged with respect to the incidents discussed
above, since they occurred outside the limitations period under Sec
10(b)
' The record shows that by June 1, Sullivan was openly soliciting
for the Union, and had already been threatened by Halsted with arrest
for such activity
WALTER KIDDE , INC. 1013
employees. However, it is necessary to determine the date
of the incident, since under Section 10(b) it would be
time-barred, if it happened before April 16.8 While Sullivan
was not "officially" terminated until April 28, it is found
below that he actually performed no work for Respondent
after March 27, and any investigation of his union sentiments
would most likely have been made either before his last day
of work or during the interval between that date and his
official termination on April 28 It follows that it is just as
likely, if not more likely, that the Garcia-Jenkins incident
occurred before April 16, as that it happened thereafter.
Accordingly, I base no violation finding thereon, and will
treat the episode as bearing only on the issue of
Respondent's union animus.
Concerning interrogation by Branch Manager Halsted,
there was testimony by Hargadon, Berger, Heins, and
Haynes that in July, August, and September, respectively,
Halsted asked them whether there had been any contacts
between union agents and guards, and Placek testified that
in September Halsted asked him if he had signed a union
card. Halsted admitted the interrogation of Placek, and
that it was his practice to question guards at various locations
about visits by union agents At first, he attributed this
to his concern about the security risk inherent in any
visits at the guard posts by "unauthorized" persons, but
thereafter acknowledged that Respondent would prefer to
remain unorganized and that he was concerned about the
visits by the union agents because, they were union agents.
It is accordingly found that on the occasions cited above
Halsted engaged in unlawful interrogation of employees
about their union sentiments and contacts.
Berger testified that in the same conversation that Halsted
asked him about the visits by the union agents he asked
Berger to let him know about any such future visits and,
referring to Union Agent Keller as a "s.o.b.," complained
that he was giving Halsted "a fit," vowed that he would
have Keller "locked up" for trespassing if he ever visited
a guard station again, and declared that he would like
to get Union President Henderson "up a dark alley." Halsted
admitted that he might have asked Berger to report any
future visits by union representatives that came to his
attention and that he threatened to have Keller jailed
if he approached the guards again, but denied the alleged
threat against Henderson. In view of the circumstantiality
of his testimony, Berger is fully credited, and it is found
that by Halsted's conduct, in requesting that Berger report
to him on any solicitation of the guards by the Union,
in threatening to jail Keller, and, in expressing, in effect,
a desire to inflict physical harm on Henderson, Respondent
violated Section 8(a)(1) of the Act.9
Haynes, a part-time guard, testified that late in September
Halsted visited his post and, after interrogating him, as
° The original charge herein was filed on October 16
Even though the threat against Keller was conditioned upon his
committing trespass on the property of a client of Respondent, the
context in which the threat was uttered made it clear that it was provoked
by Keller's connection with the Union rather than by any technical
act of trespass , and the threat was therefore calculated to impress Berger
with Halsted's strong antipathy toward union agents and , by implication,
toward any guard who would have any truck with them The threat
against Henderson lends itself to the same analysis
noted above, warned that, if the Union " got in ," Respondent
would eliminate its part-time men, using only full-time
guards. Halsted admitted the remark It is found that
by such threat Respondent violated Section 8(a)(1).
Heins testified that early in September Union Agent
Keller gave him a card and left cards for two other guards
who were assigned to the same location; that, when Heins
later made his hourly check-in call to Respondent's office,i°
Halsted answered the telephone and elicited from Heins
an account of his contact with Keller; that Halsted asked
to see one of the cards, and Heins offered to mail his
to Halsted; that a few hours later Captain Garcia arrived
on the scene and appropriated all three cards; that, when
Heins protested that he had promised Keller that he would
deliver two of the cards to the other guards, Garcia called
Halsted, who assured Heins that the other guards had
disclaimed any interest in the Union; and that only then
did Heins acquiesce in the removal of the cards by Garcia.
While admitting that he visited Heins on the occasion
in question and that Heins told him about the cards being
left by Keller, Garcia denied appropriating them or that
he was instructed to do so by Halsted. The latter confirmed
that he gave no such instruction to Garcia, and denied
ever receiving the cards, but admitted asking Heins to
mail them in . He explained that this was in accord with
his policy, which was to get the cards "out of the picture,"
adding, "If their cards come into my office, certainly they
can't go anywhere else."
On the basis of demeanor, Heins' version is fully credited.
At any rate, even Halsted's own version is tantamount
to an admission that he had a policy of removing from
circulation any Union cards that he could locate, and
that pursuant to this policy he instructed Heins to mail
the cards in. It is clear, therefore, that under either version
of the incident there was a confiscation of the cards by
Respondent in order to obstruct the Union's organizational
efforts, and that Respondent thereby violated Section 8(a)(1)
of the Act ' i
Cawthon had been employed by Respondent as a guard
lieutenant for several months until early in 1969, when
he was terminated Despite repeated demands by Respond-
ent, he did not turn in his uniform until November, on
which occasion he had a lengthy conversation with Halsted,
wherein he stated that he had gone on "a snot-slinging
rampage" and discharged 40 guards. However, Cawthon
was not clear whether Halsted implied that the 40 guards
were discharged because of their union activity or because
of other problems that arose during the union campaign.
Halsted admitted the remark but explained that it had
reference only to the fact that, when he came to Baltimore,
he found that there were 30 or 40 guards with employee
status, who were not in fact available for assignment, and
whom Halsted therefore officially terminated, requiring
them to surrender their uniforms. As Cawthon did not
unequivocally contradict that explanation I credit it. Howev-
er, when asked what else Halsted had said about the Union,
Cawthon continued:
10 The guards were required to call in to Respondent 's office every
hour
" Elias Bros, Big Boy, Inc, 137 NLRB 1057, enfd 325 F 2d 360
(C A 6)
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. They (sic) said the Union had been around and
the Union had been trying to organize and actually
he didn 't know who all was involved so he sent a
decoy around to get them to sign cards and the ones
that said they had already signed the cards that he
dust kept the name and fired them later on-he found
a Company violation to fire them.
I said to him ... "How about Vulcan-Hart? I thought
you had some real good men out there." He said
to me, "Like I told you, the ones who signed the
Union cards, had to get rid of them because we can't
have a union in an organization because the prices
are so competitive today that would actually cut the
mark-up "
Q What, if anything, did he say about Vulcan-Hart?
A. He said that the ones that signed the union cards
... he found company violations to fire them.
I asked him about Haynes because Haynes happened
to be my father- in-law . . . He said he actually fired
him because he signed a Union card but he had to
use the Company rule in order to get rid of him
because that was a violation of law to fire a man
because he signed a Union card.
Halsted denied that he had discussed the Union at all
with Cawthon. Respondent would impeach Cawthon's credi-
bility on the ground that he was irked with Respondent
because of the pressure exerted on him to turn in his
uniform, and because of the discharge of his father-in-
law (Haynes), and on the ground that it was improbable
that Halsted would volunteer such damaging admissions
as Cawthon ascribed to him On the last point, Respondent
cites the fact that the original charge herein was filed
on October 16, and Respondent would have the inference
drawn that by the time he talked with Cawthon in November
Halsted had received legal advice and would not be so
imprudent as to make the admissions ascribed to him.
It is, in fact, not easy to believe that Halsted would in
the same breath tell a stranger, like Cawthon, that he
knew it was illegal to discharge employees for signing
Union cards but that he had done so. On the other hand,
it is even more difficult to believe that Cawthon, who,
so far as the record shows, had no special expertise in
combatting unions, and had worked only several months as
a part-time guard, would invent the reference by Halsted to
his "decoy" technique for ferreting out union adherents. (In
fact, within this Examiner's own experience of more than 20
years with the Board he has not heard of such a
sophisticated form of surveillance.) It seems far more likely
that one like Halsted, whose job necessarily involved
improvising techniques for surveillance of the job
performance of his own personnel, as well as of the premises
guarded by them, would conceive of such an ingenious and
novel means of detecting union adherents.
Moreover, the candor ascribed by Cawthon to Halsted
did not seem entirely out of keeping with his character,
as revealed at the hearing. Even at the hearing, by which
time he certainly had had the benefit of legal advice,
his testimony, while in the main self-exculpatory, even
to the point of involving him in self-contradictions, and
while anything but candid in many crucial areas, was
occasionally interspersed with frank admissions of antiun-
ion policy and conduct. Finally, so far as the record shows,
Halsted had no reason to expect that Cawthon would
appear as a witness for the General Counsel, there being
no evidence that he knew of his family relationship to
Haynes, and neither Cawthon nor even Haynes were named
as discnminatees in the charge, served on Respondent in
October.
In view of the foregoing considerations, as well as demean-
or, and Halsted's many deficiencies as a witness noted
elsewhere in this Decision, Cawthon's version is credited,12
and it is found that Halsted admitted to Cawthon that
he had conducted surveillance of the guards' union activities
and that he had discharged union adherents on various
pretexts. It is further found, on the basis of the foregoing
admission, that Halsted did in fact engage in the surreptitious
campaign of interrogation and surveillance described in
Cawthon's testimony and that Respondent thereby violated
Section 8(a)(1).
3. The discharges
a. Placek
In late September and early October Respondent dis-
charged seven guards, all of them shortly after they had
signed a union card. The case of Placek will first be
considered.
When hired, on August 7, he was assigned to Food
Fair. During his 2-week stay there, Placek thrice left his
post unattended When the client finally complained about
this practice, Respondent transferred Placek to American
Standard, where during his first week he refused to perform
part of his duties" and was out of uniform while on
duty. Although he was admittedly still serving the 90-
day probationary period required of all new hires, the
only disciplinary action taken was to put Placek on "30-
day probation." During the ensuing 30-day "double-proba-
tion" period it was reported to Halsted that Placek was
again not properly dressed while on duty and had been
making his rounds on a bicycle, both of which practices
" In addition to the attack on Cawthon 's credibility outlined above,
Respondent points to his apparent uncertainty whether he began to
work for it in July or October 1968 In view of such uncertainty, and
as he would have worked for Respondent only 3 or 4 months, if he
had in fact been hired in October , I did not deem certain testimony
by him concerning Respondent 's laxity in enforcing its regulations during
his tenure as probative evidence of Respondent 's normal or current
policy in that regard , and for that reason ordered such testimony struck
However, I do not regard such uncertainty as to his hiring date as
sufficient reason to reject the balance of his testimony in the face of
all the considerations cited above favoring his credibility as against that
of Halsted
" One of his chores was the lowering of an American flag In refusing
to do this , he made an obscene reference to the flag The foregoing
conduct clearly was grounds for immediate discharge under "Rule 8"
of Respondent's guard manual
WALTER KIDDE, INC 1015
were frowned upon by Respondent, the former being, accord-
ing to Halsted, cause for discharge. However, no action
was taken against Placek at that time. On September 28,
about a week after his 30-day probation ended, Halsted
visited Placek's post and, finding him out of uniform,
asked him if he had signed a union card When Placek
announced that he had, Halsted remarked, "We don't like
to have the union with us" The next day Placek was
relieved of his assignment and on October 3, he was notified
of his termination by Halsted' s assistant , Mabe, who, accord-
ing to Placek, divulged to, him that that week Respondent
had "laid 14 men off for signing Union cards." Mabe
denied he said this, and both he and Halsted insisted
that Placek was discharged for being out of uniform on
the 28th. When asked why he overlooked Placek's offenses
during his "double-probation" period, Halsted answered
that Respondent was trying to give Placek "a break and
get him straightened out ... we had a hard time keeping
guards and we try to get them straightened out." When
asked why he was less tolerant of Placek's improper attire
after he had completed his 30-day probation than he had
been during that period, Halsted explained that he had
personally observed the offense on the 28th but not the
prior offenses. However, four of the prior offenses (leaving
his post unattended on three occasions and his conduct
in connection with the flag incident) are characterized
in Respondent's guard manual as grounds for immediate
discharge, whereas the matter of proper attire, while dis-
cussed in the manual, is not so characterized.
Moreover, although he at first asserted that he decided
to discharge Placek as soon as he saw him on the 28th
without his full uniform, Halsted had difficulty explaining
why he did not then discharge Placek instead of waiting
until the next day. Initially, he pleaded the lack of a
replacement for Placek, but, under further questioning
answered, contrary to his prior testimony, that he did
not make the "final" discharge decision until he returned
to his office. However, he promptly abandoned this position,
reverting to his original testimony that the decision was
made as soon as he saw Placek out of uniform, but he
failed to explain why, if he had already decided to discharge
Placek, he would still deem it necessary to interrogate
him about his Union sentiments.
Halsted's assistant, Mabe, insisted that Halsted did not
decide to discharge Placek until after he returned to the
office 1°
In view of this, as well as Halsted's afore-noted vacillation,
coupled with the improbability that Halsted would have
interrogated Placek about his union sentiments if he had
already decided to discharge him, it is found that the
discharge decision was made, as Halsted finally, in effect,
admitted, only after such interrogation had elicited the
information that Placek had signed a union card Moreover,
Placek impressed me as a candid, and, if anything, naive,
witness, and I credit his testimony that he received no
explanation for his discharge other than Mabe's comment
" Mabe, also, claimed credit for recommending the discharge of Placek,
on the basis of his work record Halsted's version makes no mention
of any such recommendation
on October 3, that 14 guards had been "laid off" that
week for union activity)
In consideration of all the foregoing circumstances, includ-
ing the absence of any plausible explanation for the contrast-
ing treatment of Placek before and after his admission
to Halsted that he had signed a union card, the timing
of the discharge in relation to such admission, and all
the other incidents related above bearing on Respondent's
union animus, particularly Halsted's boast to Cawthon about
Respondent's pretextual discharges of union adherents, it
is found that Placek was discharged because of his union
sentiments, and that Respondent thereby violated Section
8(a)(3) and (1).
b Heins
He worked for Respondent from May 6 to October
4. He testified that initially he was assigned to night work
at various locations, including General Electric; that, when
he told Halsted he could not continue to work at night,t6
Halsted gave him a daytime, weekend job at Ryder Truck,
where he worked for about 3 months until his discharge.
Halsted's version was that at General Electric Heins com-
plained about having to perform first aid work, whereupon
he was transferred to American Standard for a few shifts,
and that, when he objected to that assignment for a reason
which Halsted professed to be unable to recall, Heins
was given the Ryder Truck job. Since Halsted did not
dispute Heins' testimony that on his last assignment before
Ryder Truck he objected to the night hours, and was
transferred by Halsted for that reason," I credit such testi-
mony and so find.
As already related, early in September, after Halsted
learned that union cards had been left with Heins for
himself and two of his fellow guards, Captain Garcia arrived
on the scene and "confiscated" the cards. Heins and Halsted
were in substantial agreement that on that occasion Heins
at first objected to turning two of the cards over to Garcia,
explaining to Halsted that the other guards had a "right
to see the cards and make up their own minds" and
withdrew his objection only after Halsted assured him
that the others had no interest in the Union 18 After this
incident, Heins signed a union card, and he was visited
" In evaluating Mabe's credibility, here and elsewhere, I have given
due weight to the fact that at the time of the hearing he was no
longer in Respondent's employ and had no apparent reason to color
his testimony other than such reluctance as one would normally have
to admit that he or his former associates had been involved in wrongdoing,
if such was in fact the case As against this, one cannot ignore the
fact that Mabe's testimony not only conflicted in some instances with
Halsted's but also that in those instances Mabe's testimony was usually
more favorable to Respondent and that, as noted below, in his efforts
to exonerate Halsted and himself of any antiunion motivation Mabe
became involved in manifest self-contradictions and overstatements In
view of this , I cannot regard Mabe as a truly disinterested witness
Heins' wife objected to being left alone overnight
" Moreover , at a later point in his testimony , Halsted apparently
experienced a revival of memory, acknowledging in substance that he
was aware of Heins' objections to night work on one of his early jobs
See tr p 412, 11 6-12
" Here, again, Halsted at first professed to have no recollection of
the matter , but later agreed in detail with Heins' version
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at his post by Halsted, who asked if he had any more
cards and if the union agent had returned. Heins replied
in the negative to both questions. According to Heins,
a week or two later Assistant Manager Mabe offered him
a transfer to American Standard, on the night shift, and,
when the witness objected to night hours, explaining that
his wife was afraid to be left alone at night, Mabe declared
that there was nothing else for him, and he was terminated
Halsted testified that in July he negotiated a new contract
with American Standard, which provided for a 20-cent-
per-hour raise in the pay of the guards effective August
11, in return for an undertaking by Respondent to upgrade
the guard force at that location, and that it was this
undertaking, coupled with the fact that Heins had once
worked at American Standard and was familiar with the
routine there, that influenced Halsted to order the transfer
of Heins to that location. Halsted added that Heins would
have received a 20-cent-an-hour raise at American Standard,
and that when Mabe reported that Heins had declined
the transfer, Halsted decided to terminate him. However,
under cross-examination Halsted abruptly retracted his testi-
mony about Heins' familiarity with American Standard,
conceding that he did not know whether Heins had in
fact worked there before. Moreover, when asked why, despite
the high rate of turnover and difficulty of retaining good
men, he was willing to lose the services of Heins, who
was admittedly a competent guard, and why he did not
instead attempt to accommodate his preference for daytime
work, Halsted gave a series of unenlightening answers."
Finally, he took the position that Respondent could not
have a guard dictate where he would work, thereby attempt-
ing to minimize the weight given by Respondent to the
guards' personal preference in making their assignments.
However, as noted above, before the September incident
Heins, himself, had been transferred to accomodate his
personal wishes, and Mabe acknowledged that, when hired,
Placek, was assigned to Food Fair at his own request,
because of a transportation problem. And, elsewhere in
his testimony Halsted declared that it was his policy to
give as much weight as possible to employee preferences
in making assignments. If this means anything, it would
seem to mean that, where there was no compelling operation-
al reason for rejecting an employee's preference, Respondent
would respect it in making assignments. The only operational
reason suggested by Halsted for transferring Heins to Amen-
can Standard was Respondent's alleged commitment to
upgrade the guard force there.20 However, even this reason
was shown to be meretricious by the fact that Placek
was transferred to American Standard after committing
four dischargeable offenses in 2 weeks, and this Examiner
can attest from his own observation of Placek that there
19 He claimed that the scheduling of guards was not his responsibility
but Mabe's and that he was too busy at the time to intervene in the
situation or to take any measures to accommodate Heins' preference
for daytime work However, the decision to transfer Heins and to terminate
him when he refused the transfer was admittedly Halsted's and all that
he had to do, if he wished to keep Heins, was to let him stay at
Ryder Truck
10 As noted above, the other operational reason assigned by Halsted
for the transfer-Heins' familiarity with American Standard's premises-
was, in effect, retracted by Halsted
was nothing in his appearance or bearing that would recom-
mend him to a client who was anxious to improve the
calibre of the security force at his premises.
When Halsted tried to explain why Richardson, who
was alleged to have replaced Heins, was not assigned to
American Standard instead of him, the following colloquy
ensued:
Q. In view of Mr. Heins' dislike for American Stand-
ard, why wasn't Mr Richardson sent down there,
instead of replacing Mr. Heins by Mr. Richardson.
Why didn't you do it that way?
A. We didn't see fit to do it that way.
Q. Why?
A. That's a hard question to answer.
Q. Well, do your best.
Halsted then attempted to disclaim responsibility for
the matter, asserting that he was not handling the scheduling
of the guards, but he finally admitted that he had approved
the replacement of Heins by Richardson 21
Mabe testified that he offered Heins a transfer to Amen-
can Standard with a 20-cent-per-hour raise, that Heins
declined on the ground that he could not work at night,
and that even after Mabe explained he was being assigned
to the day shift Heins still refused and "quit," and Respond-
ent "accepted his termination " Mabe insisted that Heins
offered no explanation for his refusal to work at American
Standard on the day shift, but admitted that the only
offer he communicated to Heins was an 8-hour assignment
at American Standard as against the 26 hours he was
then working at Ryder Truck. Moreover, Mabe's testimony
that Heins' final refusal was unexplained seems to conflict
with Halsted's admission at one point that Mabe reported
that Heins had refused to go to American Standard because
he objected to "the hours", and Mabe's portrayal of Heins
as having resigned is at odds with Halsted's admission
that, upon receiving Mabe's report, he decided to discharge
Heins. In view of these conflicts on crucial points, as
well as demeanor, I credit Heins' version, and find he
was discharged after refusing to accept a night-shift assign-
ment at American Standard 22
While, as noted above, Mabe claimed that he offered
Heins a 20-cent-an-hour raise as an inducement to work
at American Standard, Heins' account of his colloquy with
Mabe makes no reference thereto, and, as already noted,
Mabe admitted that the only offer he actually communicated
to Heins, so far as working time was concerned, was
one of 8 hours' work at American Standard, in which
case the 20-cent raise would have been more than offset
by a drastic reduction in Heins' hours of work The General
Counsel contends that the offer of night work at American
Standard was made to Heins in the expectation that it
would be rejected, thereby affording Respondent a pretext
for discharging Heins, the real reason being his union
" As noted below in the discussion of Berger's case, Halsted beclouded
the issue still further by describing Richardson as a replacement for
Berger, rather than Heins
" In any event, even it were found that he had resigned, that would
not affect the matter See the discussion below of this issue with regard
to Hargadon
WALTER KIDDE, INC
activity . Halsted was admittedly aware that Heins was
being used by the Union as a means of contacting the
other guards at his location and that he had recently
resisted Garcia's efforts to confiscate the union cards des-
tined for them Moreover , I have credited Placek 's testimony
that Mabe admitted discharging a number of guards for
union activity about the same time that Respondent was
offering Heins the transfer to American Standard under
conditions which were predictably unacceptable to Heins,
whether one credits Heins' version that he was being offered
a night-shift assignment or Mabe's version that he was
offering Heins an 8-hour daytime job in lieu of his existing
26-hour stint . In view of this, I find merit in the General
Counsel's contention , and conclude that Respondent had
no bona fide expectation that Heins would accept the
proposed transfer , but anticipated that he would reject
it, thereby supplying Respondent with a pretext for discharg-
ing him , the real reason for such discharge being his suspect-
ed union sympathies , as revealed by the foregoing September
incident Moreover , I would reach the same result, even
if it be assumed that the transfer was offered to Heins
in good faith . The issue would then be whether , absent
discriminatory considerations, Respondent would have dis-
charged Heins merely for refusing a transfer . Since, as
will be seen , the same issue recurs in the cases of Hargadon
and Berger , which are discussed below, it may be well
to explore the matter at some length here.
All three men were veteran, well-regarded employees.
Heins and Berger were discharged allegedly for refusing
a transfer and, as found below , Hargadon was given the
choice of accepting a transfer or quitting and chose the
latter. In all three cases, Halsted explained he was enforcing
a policy of not permitting the guards to "dictate" where
they would work . However to credit this explanation in
the case of Heins, which was , as will be seen, typical
of all three cases, one would have to ignore the following
matters:
1. The aforenoted accommodation of Heins, himself, and
of Placek before their union involvement.
2. Respondent's admitted policy of giving employee prefer-
ences with regard to assignments the maximum weight
consistent with operational requirements
3 The absence of any plausible evidence of an operational
need for the transfer of Heins to American Standard
4. Halsted's admission, in effect, that about the time
of Heins' discharge Respondent 's manpower problem was
so acute that it was no longer strictly enforcing its work
rules but was tolerating even multiple, dischargeable offenses
by a probationary employee like Placek, because it could
not afford to discharge him.
5 The contrast between the work record of Heins, a
valued employee, and the work record of Placek.
6. The absence of any reference in the guard manual
to the matter of disciplinary action for refusing assignments,
which would seem to indicate that Respondent did not
expect the problem to arise because of the policy , reflected
in Halsted 's own testimony, of deferring to the guards'
wishes.
To sum the matter up , Respondent would have one
believe that , while it could not afford to discharge Placek,
1017
despite his many dischargeable offenses, it could afford
to terminate an employee of proven competence like Heins
for a single offense, which was not termed a ground for
discharge or otherwise alluded to in the guard manual,
and which was an offense only because of Halsted 's arbitrary
insistence on the transfer of Heins to American Standard
contrary to Halsted 's own avowed policy of accommodation.
Accordingly , even if Heins be deemed to have refused
a transfer offered in good faith , I would still find that
he would not have been discharged for such refusal , absent
his union involvement . In so finding, I would weigh the
implausibility of Halsted 's foregoing explanation against
the timing of the discharge in relation to the Garcia-
Heins incident and the admissions of Halsted and Mabe
concerning reprisals against union adherents.
It is concluded that, by discharging Heins, Respondent
violated Section 8(a)(3) and ( 1) of the Act
c. Haynes
Haynes was employed by Respondent for 3 years until
his discharge on September 26 Early in September he
signed a union card He was a part-time guard , working
on weekends at the Vulcan-Hart plant from Saturday morn-
ing to Sunday morning, a period of 22 hours. He was
relieved on Sunday mornings by Hoover . Because of another
job, Haynes occasionally found it inconvenient to report
early Saturday morning, in which case he would arrange
for Hoover to take over for him during the early part
of the day, and Haynes would reciprocate by working
part of Hoover 's Sunday shift This arrangement having
been approved by Halsted 's predecessor, Haynes had not
thought it necessary to clear it again with Halsted, when
he became branch manager. Although he had indulged
in this practice several times under Halsted 's regime, Haynes
had not been criticized therefor One of these "swapping"
incidents occurred in the morning of September 20. Later
that day, after reporting for duty, Haynes was approached
by Halsted , who, as found above, elicited from Haynes
the admission that he had been solicited by the Union,
and warned of the elimination of part-time employees if
the Union organized the guards. It is conceded that Haynes
on that occasion also volunteered the information that
he had signed a union card. At the same time, according
to Halsted , he was informed by Haynes that Hoover had
substituted for him that morning, at the request of Haynes
As Haynes did not dispute this testimony , I credit it The
next Friday Haynes was notified of his discharge for
swapping time with Hoover.
When asked why he had not disciplined Hoover, Halsted
explained that he regarded Haynes as more culpable , because
he was the senior employee, as well as the instigator in
the affair . Denying that he was aware of any prior incident
of this sort , Halsted ascribed his objection to unauthorized
swapping between guards to the danger that, if a guard
met with a fatal mishap on the job , Respondent might
notify the wrong next of kin, and to the fact that it
was sometimes necessary to report to the police what guard
was on duty during an incident which had become the
subject of a police investigation . However, there was no
evidence that Respondent had issued any instructions against
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unauthorized swapping of time and there is no reference
to the matter in the guard's manual, which contains a
comprehensive code of conduct for the guards 2' And, this
single offense by Haynes, a proven, veteran guard, would
seem, in any event, to have been a far less serious matter
than the four dischargeable offenses by Placek, a probation-
ary employee, which were overlooked by Respondent until
he signed a union card. Accordingly, I do not regard
the foregoing explanation of Haynes' discharge as sufficiently
cogent to overcome the evidence of discriminatory motiva-
tion afforded (a) by the timing of the discharge in relation
to Halsted's admitted discovery on September 20 that
Haynes had signed a union card, (b) by Cawthon's credited
testimony that in November Halsted specifically identified
Haynes as one of those discharged for Union activity under
the guise of enforcing a company rule, (c) by Mabe's
admission to Placek on October 3, that a number of guards
had been terminated for union activity about that time,
and (d) by all the other manifestations of union animus
cited above.
It is accordingly found that Haynes was in fact discharged
for adhering to the Union, and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act
d Hargadon and Betz
Hargadon had worked for Respondent as a full-time
guard for nearly 2 years to October 8, had risen to the
rank of sergeant and was admittedly well-regarded by
Respondent. During that entire period he worked full time
at the plant of Southern States Fertilizer Company, from
4 p.m. to 12 midnight. About October 1, Keller left some
cards at Southern States with another guard, Montgomery,
who immediately apprised Halsted of the fact. Halsted
instructed Montgomery to tear up any cards that were
given him, and, if Keller returned, to detain him until
Halsted arrived. However, Montgomery placed the cards
in or on a desk in the guard office, and, according to
his testimony, disclosed their whereabouts to Hargadon
and another guard, Betz From a synthesis of their testimony
it is found that the latter two signed the cards, and left
them lying in full view on the office desk.24 Betz testified
" Moreover, it seems strange that Halsted should regard Haynes'
role in the swapping incident as so reprehensible as to require his immediate
discharge, but that, as Halsted admitted, he did not deem Hoover to
merit any disciplinary action whatsoever, notwithstanding that the swap-
ping arrangement could not have been effected without his cooperation
(Halsted ascribed this complete exoneration of Hoover to the fact that
Hoover was protecting Respondent's interest by covering a post that
otherwise might not have been covered at all Apart from the unlikelihood
that Haynes would have failed to cover his post, if Hoover had not
agreed to do so, it is clear that Hoover was as much at fault as Haynes
in not disclosing to Respondent that he was taking on an unscheduled
assignment, which nondisclosure was the gist of Haynes' offense, according
to Halsted )
" Hargadon testified both (a) that he left his card on the desk and
(b) that he gave it to Betz, who, he understood, returned it to Montgomery
Betz testified that he found Hargadon's card on the desk together with
three other blank cards, one of which Betz signed, and that he left
both signed cards on the desk "for whoever was going to pick them
up" I gather from this that what Hargadon meant when he said he
"gave" the card to Betz was that he told Betz that he had left the
card on the desk, expecting Betz to return it to Montgomery
that, when Montgomery later came to relieve him, he
told Montgomery that "`the cards were laying there " Mont-
gomery, however, professed at the hearing to be unaware
of what happened to the cards after he advised Hargadon
and Betz where they could be found. In evaluating Mont-
gomery's credibility, I have given weight to the fact that
he was apparently attempting to play a double role in
the matter, making the cards available to Hargadon and
Betz, but at the same time notifying Halsted that the
Union had left the cards In any event, it having been
found on the basis of the mutually corroborative testimony
of Betz and Hargadon that their signed cards were left
on the desk in the guards' office, and there being no
specific contradiction of Betz' testimony that the cards
were there when Montgomery came to relieve him, I do
credit Montgomery's denial that he knew anything more
about the cards, but find that, since the cards were lying
in full view on the guards' desk, when he relieved Betz,
it was impossible for Montgomery not to have seen them.
About a week later, Hargadon was notified that Respond-
ent had decided that the job at Southern States did not
require a sergeant and he was being transferred to American
Standard. According to Hargadon, he offered to accept
a reduction in rank and remain at Southern States as
a private, because the transfer to American Standard posed
a serious transportation problem for him, but Respondent
insisted that, if Hargadon would not accept the transfer,
he would have to turn in his uniform. Hargadon did so
3 days later, but, according to his testimony, in returning
at that time to Southern States to pick up his uniform
he observed another guard sergeant working in his place.
Mabe testified that it was he who called Hargadon on
the foregoing occasion, that he was offered a 20-cent-
an-hour raise at American Standard, and that, in view
of Hargadon's transportation problem, he was offered the
midnight to 8 a in shift, because public transportation
would be available to him at 8 a m , but Hargadon insisted
he would rather quit and did in fact quit. While he admitted
telling Hargadon that no sergeant was needed at Southern
States, Mabe denied that Hargadon's replacement was a
sergeant, contending that the individual in question was
only a private at the time he replaced Hargadon, and
was not elevated to sergeant until 30 days later, when
his duties were, according to Mabe, enlarged. He added
that his reason for attempting to transfer Hargadon was
to improve the calibre of the guard force at American
Standard, and, when asked what was gained by taking
a position which resulted in losing Hargadon's services
altogether, Mabe declared that he could not let the guards
dictate where they would work
Halsted confirmed that he instructed Mabe to upgrade
the guard force at American Standard by transferring to
that location any available guard sergeants, that Hargadon
was selected for that reason, and that Respondent could
not permit its guards to dictate where they would work
However, under cross-examination Halsted took the tack
that Hargadon was selected because Respondent wanted
to give him the benefit of the higher rate at American
Standard, which, if true, would mean that Hargadon's
only offense was to refuse to cooperate in Respondent's
efforts to secure him a wage increase, a curious reason
WALTER KIDDE, INC 1019
for giving him no alternative to the transfer but resignation
Finally, Halsted attempted to minimize his role in the
matter, explaining that by the time it came to his attention
Hargadon had already quit, and that it was not Halsted's
practice, nor did he have the time, to intervene at such
a point. However, it would seem that, considenng the
high rate of turnover Respondent was experiencing, and
Hargadon's admitted qualifications, Halsted could well have
spared the few moments it would have taken him to direct
Mabe to recall Hargadon rather than lose his services
altogether
Moreover, as pointed out above, it was, in effect Respond-
ent's admitted policy in making assignments to respect
the work preferences of its guards, absent compelling, opera-
tional reasons for not doing so. Here, the only operational
reasons cited were (1) the fact that the job at Southern
States did not require the services of a guard sergeant,
and (2) the need to upgrade the calibre of the guard
force at American Standard. As for (1), I credit Hargadon's
testimony that, when he returned to his old station to
pick up his uniform, he saw a guard sergeant on duty.25
As to (2), I reject this reason on substantially the same
grounds as it was rejected in the case of Heins, as well
as Halsted's aforenoted shifting explanations of the transfer.
There remains Mabe's contention that he did in fact attempt
to solve Hargadon's transportation problem by assigning
him to the shift from midnight to 8 a.m. However, Hargadon
explained that this did not solve his problem, since, in
order to get to work at midnight, he would have to take
a 9 p.m. bus. As for the 20-cent raise allegedly offered
him, Hargadon, testifying in rebuttal, not only denied that
it was mentioned, but insisted that it would not have
paid him, in any case, to take the transfer even at such
an increase, since he would have to spend about 4 hours
a day in travel time 26
Respondent's final contention is that Hargadon was not
discharged but quit, and, here, unlike the case of Heins,
there is no admission by Halsted or Mabe that Hargadon
was discharged and Hargadon's own testimony indicates
that he was offered a choice of accepting a transfer or
turning in his uniform and elected the latter However,
that does not dispose of the matter, since even a quit
may under certain circumstances be found to constitute
a constructive discharge, as where the employee quits to
avoid a downgrading of his working conditions. Here, apart
from the limited availability of public transportation to
his new post, Hargadon was faced with less desirable condi-
tions in that it was about 20 miles further from his home
than his existing location, and a 20-cent-an-hour raise,
even if offered, would not have compensated him for the
extra time and expense involved. It follows that Hargadon's
resignation to avoid a transfer to a less desirable station
was a constructive discharge; and, if the transfer was ordered
for discriminatory reasons, such constructive discharge
11 I was more favorably impressed by Hargadon 's demeanor Moreover,
while Mabe denied that the replacement was a sergeant , Halsted was
vague as to the matter
16 At Southern States, Hargadon was within walking distance from
his home.
would violate Section 8(a)(3). That the motivation for the
transfer was discriminatory is indicated by the implausibility
of the reasons assigned therefor by Respondent, and by
the improbability that, absent discriminatory considerations,
Respondent would want to aggravate its manpower problem
by arbitrarily forcing Hargadon to choose between a less
desirable post and resigning."
There remains only Respondent's contention that it had
no knowledge of Hargadon's union activity. Before resolving
that point, it may be in order to consider the related
issue with regard to Betz.
Betz, like Hargadon, had worked for Respondent for
about 2 years at Southern States. He signed a union card
at the same time as Hargadon, under the circumstances
described above. On Sunday, October 5,26 he worked on
the shift from midnight until 8 a.m. About 7:15 a.m.,
he received a call from home reporting that his wife was
ill and urging him to come home directly after the end
of his shift. However, his relief did not appear at 8 a in.,
and, according to Betz, after waiting about 20 minutes,
he notified Captain Garcia by telephone that he could
not wait any longer and was leaving the keys on the
window sill for his relief, which arrangement was approved
by Garcia. Betz left at 8 30 a in On October 8, he was
discharged by Halsted for leaving his post that Sunday
before his relief arrived.
Garcia acknowledged that Betz' relief was late that morn-
ing but insisted that Betz was directed to wait for his
relief and was not authorized to leave when he did.
Halsted asserted that he was notified by Mabe on October
6, that Betz had not waited for his relief, who, when
he arrived, could not find the keys left by Betz on the
window sill, and had been locked out of the post for
8 hours until the keys were finally located.29 However,
Halsted's final position was that Betz was discharged for
his early departure and not because of the difficulty his
relief had in finding the keys. Although under the guards'
manual the late arrival by Betz' relief" was a dischargeable
offense, Halsted professed to have no recollection of any
disciplinary action against the man. When asked why he
was not also terminated, Halsted explained that he did
not deem late reporting for duty to be as serious a matter
as leaving a post unattended. Halsted also distinguished
the case of Placek, who had left his post unattended,
on the ground that he had not completely abandoned
his post but had been loitering in the restroom. However,
whatever merit such a distinction may have from the stand-
point of security considerations, it should be noted that
in Placek's case Respondent overlooked three such violations
within a period of 2 weeks by a probationary employee,
whereas in the case of Betz, a proven, veteran employee,
this was admittedly the first such violation that had come
1' As to this point, see the discussion above of the related issue
with regard to Heins
" This and other dates relating to the events preceding Betz' discharge
have been fixed by reference to Halsted 's testimony , based on company
records, that Betz was terminated on October 8
" Montgomery confirmed that he had to help Betz' relief find the
keys
10 According to Montgomery , the relief guard admitted that he was
2 hours late
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Halsted's attention. Moreover, Respondent admittedly
overlooked other offenses by Placek, which were either
termed in the guard manual causes for discharge or admit-
tedly regarded by Halsted as such. Betz, on the other
hand, apart from the October 5 incident, was not charged
by Respondent with any misconduct throughout his 2-
year tenure.
In any event, on the basis of demeanor, I credit Betz
as against Garcia, and find that the latter did in fact
authorize Betz to leave his post when he did, and that
the reason assigned for his discharge was therefore patently
pretextual.
While there was no direct evidence that Halsted knew
that either Betz or Hargadon had signed a union card,
it has been found that their cards were left in a place
where they could not fail to come to the attention of
Montgomery, who had admittedly already taken it upon
himself to inform Halsted of the delivery of the cards
by the union solicitor. It has been found, also, that within
a week or two after that incident Betz was discharged
for pretextual reasons and Hargadon resigned when
Respondent arbitrarily ordered him to take a less desirable
assignment . Moreover, as found above, Mabe told Placek
on October 3, that a number of guards were being discharged
for Union activities, and Halsted later boasted to Cawthon
of having engaged in surveillance of union activities and
of having discharged union adherents on various pretexts.
Finally, when asked at the hearing, whether he had been
informed that Hargadon was involved with the Union,
Halsted did not enter an unequivocal denial , professing
only a lack of recollection.
It is well settled that an employer's knowledge of an
employee's union activity or sentiments need not be proved
by direct evidence but may be inferred from all the pertinent
circumstances. The Supreme court so held in an early
case," stating:
The Board was justified in relying on circumstantial
evidence of discrimination and was not required to
deny relief because there was no direct evidence that
the employer knew these men had joined [the union]
and was displeased or wanted to make an example
of them.
Upon consideration of all the foregoing matters, it is
found that Betz was discharged because of his adherence
to the Union, and that Hargadon was assigned to a less
desirable job for the same reason, and that his resignation
because of such assignment was a constructive discharge.
It is further found that by such actual and constructive
discharges Respondent violated Section 8(a)(3) and (1) of
the Act.
e. Ruby
When discharged on September 22, Ruby had worked
for Respondent at the Vulcan-Hart plant for more than
4 years. He signed a union card on September 15, and
tendered a card to his fellow guard, Hoover.
" N.LR.B v. Link Belt Co, 311 U S. 584 , 602 Accord Pacific
Southwest Airlines , 181 NLRB No 38 , N L R B v Lawson Printers, Inc,
408 F 2d 1004 , A J Krajewski Manufacturing Co v N L R B, 413 F 2d
673(C A I)
During Ruby's shift, from midnight to 7 a.m., milk
and bread deliveries were made to the plant cafeteria,
and he testified on direct examination that, in compliance
with instructions from Vulcan-Hart's management, it had
been his practice all the time he had been there to leave
the plant door unlocked from 2 a.m, to 7 a.m., to admit
the delivery men. According to Ruby, in the morning
of September 22, Garcia arrived at the plant and reprimand-
ed him for leaving the plant door unlocked, whereupon
Ruby explained that he had been instructed to do so
to accommodate the delivery men, but before he could
offer any elaboration Garcia discharged him.
Garcia testified that on that occasion, in the course
of a routine surveillance of the Vulcan-Hart premises, he
ascertained that Ruby unlocked the plant door about 2
a.m.; that the witness thereafter sat in his car in the
plant parking lot for 3 or 4 hours, that he saw the bread
deliveryman enter and leave; that he had a full view of
the plant door from his car, and did not see Ruby lock
it at any time during this period; that, although he had
been guard captain for about a year, this was the first
time he had engaged in surveillance of Vulcan-Hart; that
it was a routine surveillance, one purpose thereof being
to determine how much time Ruby spent on his rounds;
that he could verify this by observing from the parking
lot when Ruby left, and returned to, his desk near the
front door; that the witness had not made any effort to
ascertain from Vulcan-Hart's management whether the plant
door should be locked or unlocked, and was aware only
of the rule contained in Vulcan-Hart's manual requiring
that the door be locked until 4 a.m., when employees
began to arrive; and that he was not aware of any practice
of leaving the door unlocked for the delivery men. It
apparently was Garcia's contention that, in any event,
Ruby should not have unlocked the door until the delivery-
men arrived, and should have locked it promptly after
their departure.
Garcia acknowledged that, when reprimanded for leaving
the door unlocked, Ruby retorted that he was only following
his longstanding practice, in order to accommodate the
delivery men. Garcia added that he did not discharge
Ruby at that point but merely suspended him, submitting
a report to Halsted.
Halsted professed to have received from Garcia a report,
which attributed to Ruby an admission that he left the
door open after 2 a.m., even while he was making his
rounds of the building, and which related Ruby's explanation
about the deliverymen. Halsted denied that he had any
prior knowledge of Ruby's practice of leaving the door
unlocked. Halsted added that, although he also had a
report at the same time about certain insubordinate remarks
to Garcia by Ruby,32 he was discharged only because of
the unlocked door.
In rebuttal, Ruby testified that it was physically impossible
from any point outside the plant to observe his station
near the door in question because of the structure and
shape of a vestibule situated between that door and the
92 Ruby had not recognized Garcia, mistaking him for a police officer, and
questioned his authority to enter the plant
WALTER KIDDE, INC. 1021
outside entrance of the plant ." As there was no contrary
testimony about the vestibule , I credit Ruby in that regard,
and reject Garcia 's explanation for his surveillance of Ruby
on September 22." In view of this, and in view of the
fact that Garcia 's first surveillance of Ruby occurred only
1 week after he signed a union card , as well as all the
other circumstances bearing on Halsted 's union animus,
it is more likely, and I find , that , having learned of the
card incident , Garcia 's only purpose that night was to
verify that Ruby was still leaving the plant door unlocked,
so that Respondent might use that conduct as a pretext
for discharging him.')
In any event , even if it be assumed that Ruby's dereliction
was detected in the course of a routine investigation, that
would not alter the result . While there was no specific
evidence that Respondent knew of Ruby's union sentiments,
it has been found that Halsted admitted discharging guards
at Vulcan-Hart (where Ruby worked) for union activity
under the guise of violating company rules , and that Mabe
disclosed that guards were being discharged for union activi-
ty about the time of Ruby's termination . Nor is there
any need to repeat at this point all that has been said
before about Respondent 's apparent indifference to rule
violations in the case of Placek (before he signed a union
card)" nor to contrast Placek 's tenuous, probationary status
with that of Ruby , a veteran employee , who so far as
appears, had a blameless work record prior to September
22, nor to reiterate what has already been said about
Respondent 's manpower problem . In view of this, as well
as the timing of Ruby's discharge in relation to his signing
of a union card , it is found that he was discharged for
that reason , and that Respondent thereby violated Section
8(a)(3) and (1).
f. Berger
Berger had worked for Respondent for about 15 months
to October 10. He was 60 years old and weighed about
33 In rebuttal , Ruby also stated, apparently contrary to his prior
testimony , that the door was not unlocked throughout the period from 2 a in
to 7 a in , but either only at times that the delivery men were actually on the
premises or while Ruby was at his station near the door and in anticipation of
their arrival I have given this apparent inconsistency due weight in
appraising Ruby's credibility , where he is contradicted
34 That explanation , as related above , was that he wanted to see if Ruby
was making his rounds at the proper time, which he could determine from the
parking lot because he had a clear view of Ruby's desk
35 Garcia testified that he did , in fact, test the plant door after 2 a in and
found it unlocked , while Ruby was making his rounds In view of Ruby's
initial testimony implying that he did leave the door unlocked continuously
for at least several hours after 2 a in , I credit Garcia here However, for
reasons already indicated , I do not credit Garcia's further testimony that he
sat in a parked car from 2 to 6 a in in order to observe Ruby ' s performance
of his rounds , but deem such testimony to have been contrived to give a
routine appearance to a surveillance which was conducted only for the
purpose of establishing a pretext for discharge
36 It is not even clear what rule Ruby violated Garcia made reference only
to a violation of Vulcan-Hart 's "regulations " However , both he and Halsted
admitted that they made no effort to ascertain whether Vulcan -Hart had
authorized Ruby's practice While Halsted contended that such
authorization would not affect the matter absent any clearance thereof with
Halsted , and it was therefore a breach of Respondent 's rules to do what
Ruby did, there is no interdiction of such conduct in Respondent's
comprehensive guard manual , and, needless to say, unlike Placek's many
violations , it is not listed therein as a ground for discharge
300 pounds . His first job had been at American Standard,
where he was required to climb five flights of steps four
times a day. He was eventually transferred to work Sundays
at HCA Foods and Fridays and Saturdays at Ryder Truck.
At least until about 2 months before his discharge he
engaged for several months in weekly conversations with
Halsted about the Union , in the course of which , according
to Halsted , Berger supplied extensive information about
the progress of the Union 's organizing campaign among
the guards." Nevertheless , late in September he signed
a union card and induced three other guards to do likewise.
According to Berger , on October 10, Mabe called him
and, citing new orders "from Philadelphia" to rotate the
guards periodically , announced that it was therefore neces-
sary to transfer Berger to American Standard . Berger added
that he refused the transfer , explaining that he would
prefer an assignment that involved less climbing , but Mabe
replied that he had nothing else to offer Berger and dis-
charged him.
Mabe testified that he offered Berger a 20-cent -an-hour
raise at American Standard , and that Berger rejected the
transfer and quit . At first , Mabe denied that he knew
of Berger's objection to American Standard or that he
even knew that Berger had formerly worked there, but
he almost immediately thereafter explained that he selected
Berger because of his familiarity with American Standard
and because his transfer there would save hiring a new,
untried man . The first of these reasons was patently inconsis-
tent with his profession of ignorance of Berger's prior
assignment to American Standard, and the second, which
implied that he needed Berger to fill a vacancy at American
Standard , which otherwise would have to be filled with
a new hire, raises the following question : If he offered
Berger the vacancy to avoid hiring a new man, would
not the loss of Berger 's services a fortiori have defeated
his purpose by forcing Mabe to hire two new untried
men, one to fill the post at American Standard and one
to replace Berger? Respondent offered no satisfactory answer
to this question.38
Moreover , absent any contradiction thereof, I credit Ber-
ger's testimony that Mabe cited an alleged , new rotation
policy as the only reason for the transfer, a reason which
neither Mabe nor Halsted saw fit to rely on at the hearing.
Halsted insisted that Respondent's only purpose in reassign-
ing Berger was to improve the quality of the guard service
at American Standard in return for its agreement to pay
a higher rate , 39 and Halsted explained that he regarded
Berger as particularly qualified for the transfer because
he was familiar with the location and had done a very
good job there . However, Halsted admitted that, when
34 As Berger did not specifically deny supplying such information, Halsted
is credited
3e Mabe professed to be certain that Berger's replacement at Ryder Truck
was not a new hire, but could not remember who he was (Halsted at one
point said that Berger was replaced by Richardson , a former employee of
Respondent , but elsewhere Halsted insisted that Richardson replaced Heins )
In any event , Mabe made no effort to explain how he avoided hiring at least
one new man after Berger's departure
31 Although Halsted said , also, that it was not desirable to keep a guard
too long in the same location , he did not ascribe the transfer of Berger to any
such consideration or to any new rotation policy
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he originally transferred Berger from American Standard
to Ryder Truck, Halsted knew of his objection to climbing
five flights of steps four times a day at American Standard,
and it was in this context that Halsted testified, as already
noted, that in making assignments, it was his policy to
give as much weight as possible to employee preferences.
Nevertheless, Halsted at first insisted that, in considering
whether to send Berger back to American Standard, he
could not take into account any adverse effect on Berger's
health. Later, he abandoned this extreme position, averring
that the health factor was considered in Berger's case,
but he felt it would not be too hard on Berger to require
him to climb five flights of steps four times a day. Thus,
Halsted would have one believe that, despite his avowed
policy of, in effect, respecting an employee's preferences,
absent compelling operational reasons to the contrary, he
decided in October to disregard Berger's wishes and, despite
his 60 years and 300 pounds, reassign him to the American
Standard location, in the bona fide belief that the strenuous
physical requirements of that job posed no risk to Berger's
health.
In the first place, in view of Halsted's aforecited accommo-
dation policy it is appropriate to consider what operational
reason allegedly compelled the return of Berger to American
Standard Here, as in the cases of Heins and Hargadon,
the only such reason cited was the upgrading of the guard
force at American Standard. However, as in those cases,
that reason carries no conviction, when one considers that
only about a month earlier Respondent had transferred
Placek to American Standard despite his dismal performance
at Food Fair, and kept him there until September 28,
in the face of his continued derelictions. Secondly, when
one considers the obvious physical basis of Berger's objection
to American Standard, it is not credible that Halsted could
have honestly thought there was no danger to Berger's
health in the new assignment
There remains to be considered Mabe's testimony that
Berger was not discharged, as he testified, but quit While,
for reasons indicated above in the case of Hargadon, it
is not believed that resolution of this conflict would affect
the result, it may be noted that Halsted, himself, referred
to Berger as having been "terminated for refusing to accept
an assignment." Accordingly, I credit Berger's testimony
that he was discharged.
As for Mabe's testimony that he offered Berger a 20-
cent-an-hour raise at American Standard, Berger denied
that such an offer was made, and on the basis of demeanor,
as well as the rejection, above, of like testimony by Mabe
in the case of Hargadon, I credit Berger. Moreover, even
if such a raise had been offered, it would have been predicta-
ble that one in Berger's condition would not be tempted
by the few extra dollars involved to ignore the danger
to his health. Finally, even if it be assumed that the offer
to Berger was made in the good-faith belief that he would
accept, I would still find, for the same reasons as are
cited in the case of Heins, that his discharge for rejecting
the offer was pretextual. For, here, again, Respondent is
in the position of contending that, even while it was hard
pressed to find and retain competent guards, and even
though it had a policy of tailoring its assignments to the
preferences of its guards, Respondent was discharging one
of its better guards for rejecting a change in assignments,
notwithstanding that there was no credible, operational
reason for such change, and notwithstanding that it involved
an apparent, serious risk to the guard's health.
Upon consideration of all the foregoing circumstances,
it is concluded that the reason assigned for Berger's discharge
was pretextual.
Respondent contends that, in any event, there is no
evidence that it knew of Berger's prounion sentiments
As already noted, for several months Berger had ostensibly
played an antiunion role, supplying Halsted with information
about the progress of the Union's campaign, and it was
only about 3 weeks before his discharge that Berger had
a change of heart about the Union and began to solicit
for it. Although the record is not clear on this point,
it seems likely that it was about that time that Berger
ceased playing the role of informer.40
At any rate, in view of the implausibility and inconsistency
of the reasons assigned for Berger's discharge, the fact
that the circumstances thereof followed the same pattern
as that of Heins, which has been found discriminatory,
the admission, cited above, by Halsted and Mabe as to
the mass discharge of guards for union activity," and the
admitted extensive efforts by Halsted to gather information
about the guards' union activity, it is found that Halsted
either learned or suspected that Berger had had a change
of heart about the Union and that he was, in fact, discharged
for that reason, and that Respondent thereby violated Sec-
tion 8(a)(3) and (1) of the Act.
g. Sullivan
While there was evidence, and it is found below, that
Sullivan's last day worked was March 27, which was outside
the 10(b) period, it was stipulated at the hearing that
he was not, in fact, discharged until after April 16, which
was the cutoff date under Section 10(b) He had worked
for Respondent with some interruptions for about 6 years
and during his last year of employment signed a union
card and solicited the signatures of other guards at various
locations, obtaining 30 such signatures in the first 3 months
of 1969.
As related above, in 1968 his union activities were regard-
ed by the manager of the Baltimore branch as so widespread
and notorious that, despite his personal lack of sympathy
with Respondent's antiunion policy, he felt compelled to
take some token, disciplinary action against Sullivan in
the form of a 1 week suspension. As for Halsted, himself,
he did not unequivocally deny that he knew of Sullivan's
union activity,42 and it has been found above that during
4' Halsted professed not to recall when this happened, and Berger's
testimony indicated that he had a discussion with Halsted about the
Union 2 months before his discharge, but was not clear as to whether
this was his last such discussion
41 As related above, Mabe's admission was made on October 3, a
Friday, and that weekend was the last one on which Berger worked
for Respondent.
As to the propriety of relying on circumstantial evidence of employer
knowledge of union activity, see the Link Belt case and the other cases
cited, supra,
" He was evasive as to whether he had received information that
Sullivan was involved in union activity
WALTER KIDDE, INC
the month immediately preceding Sullivan's discharge Gar-
cia asked Jenkins what he knew about Sullivan's union
activity. Although Garcia pleaded ignorance of such activity,
the fact that he would single out Sullivan as the target
of his investigation warrants the inference that he at least
suspected Sullivan's involvement with the Union. Such infer-
ence is confirmed by Sullivan's undenied testimony related
above, that on March 23, Garcia visited his station, asked
if any union representatives had been soliciting there, and
warned that any guard signing a card or soliciting for
the Union would be discharged. 49 It is, accordingly, found
that Respondent suspected, if it did not, in fact, know,
that Sullivan was a union adherent.
Sullivan's last assignment was at the plant of Crown
Cork & Seal, where he worked on a full-time basis, 6
days a week. Sullivan testified that on March 27, he was
relieved by Smith, a guard lieutenant, and instructed to
report to Halsted; that, when the witness did so, he was
told that Smith was replacing him, there was nothing
else available for him, and he should go home and await
further instructions; that he has not been recalled to work
since; that on March 28, he drove by his former station
and saw Smith together with a new guard; that about
2 weeks later he received a letter from Respondent notifying
him of his termination; and that on May 9, he received
a second letter from Respondent demanding the return
of his uniform, with which he complied.44
Halsted's version was that in mid-April it became neces-
sary to replace Sullivan with a guard lieutenant because
of the complaints of the client, Crown Cork & Seal, about
the calibre of the guards assigned to it; that, when Sullivan
reported for reassignment , he was offered a night-shift
job at an unspecified location, which he declined because
he already had a part-time evening job with another employ-
er; that after Sullivan expressed an interest in part-time
work Halsted, on April 12 , assigned him to work on April
19 at Adley Freight, but 30 minutes before he was due
to report he called Halsted to say that he had to "check
out" a job at the University of Maryland, which he was
scheduled to start the following Monday; that a few days
later Halsted made an appointment to discuss with Sullivan
the matter of his reassignment; that 25 minutes after the
time fixed for that appointment Sullivan called that he
could not come because of some problem with his automo-
bile; and that Halsted then told Sullivan he was "fed
up to the ears with it," there was nothing else for him
and he was terminated. Halsted then identified a letter
dated April 28, as one he sent to Sullivan notifying him
of his termination and requesting return of his uniform.
This letter reads in part:
This letter will confirm our telephone call of April
19, 1969, wherein you advised us that you had obtained
full-time employment elsewhere, making it impossible
for you to continue your full-time employment with
us.
" There was, moreover, no denial of Sullivan's testimony, and I find
that early in March Halsted, himself, came to his guard post and asked
if he knew of any solicitation on behalf of the Union
44 It is not disputed that after his termination he continued to solicit
Respondent's guards on behalf of the Union, thereby arousing Halsted's ire
1023
Halsted explained that it was on April 19 that Sullivan
stated he was not available for full-time work with Respond-
ent because he was taking the job at the University of
Maryland the next Monday (April 21) and that he wished
to be considered only for part-time work, and that Halsted
replied that he would not give him any "under the circum-
stances." However, Sullivan insisted that he did not start
work at the University of Maryland until April 29, and
that he never reported this to Halsted, since he had by
that time already been terminated by Respondent. Sullivan
also denied that he had been offered a job at Adley Freight
on April 12, that he had an appointment with Halsted
later that month to discuss future assignments, and that
he never received the letter of April 28, quoted above.
Halsted added that after April 28, Sullivan called and
asked about part-time work but Halsted refused to consider
him therefor because of "all the problems we had had."
It appears from the foregoing that the critical areas
of disagreement are (1) whether Sullivan last worked on
March 27, as he testified, or on a date a few weeks later,
as Halsted's testimony indicates, (2) whether Halsted, as
he claimed, thereafter offered Sullivan a night shift job
which he declined, and a weekend job, for which he failed
to report on April 19, because of a conflicting appointment,
(3) whether Sullivan told Halsted on the latter date, as
Halsted attested, that he was going to work for the Universi-
ty of Maryland, and (4) whether several days later Sullivan
failed to keep an appointment with Halsted to discuss
his status. As to (1), I credit Sullivan, since he appeared
to have a more exact recollection of the date than Halsted,
and Respondent did not offer any documentary evidence
on the point.45 However, as to (2) and (3), despite some
apparent inconsistencies and confusion about chronology,
I was favorably impressed by the circumstantiality of
Halsted's testimony, the partial corroboration thereof by
the letter of April 28, which refers to a conversation on
April 19, in which Sullivan reported that he had obtained
full-time employment elsewhere, and the absence of any
explanation as to how Halsted could have learned of
Sullivan's part-time evening job or his acceptance of a full-
time job at the University of Maryland late in April, unless
Sullivan had told him about both those matters.
Accordingly, I do not credit Sullivan's denial that after
March 27, he was offered a night job or a weekend job, nor
do I credit his denial that he received the letter of April 28.46
As to (4),l I was again , impressed by the circumstantiality
of Halsted's testimony and credit him. Accordingly, it is
found that Sullivan last worked on March 27, that he was
thereafter offered a night-shift assignment, which he
declined, and a weekend job, to begin April 19; that he was
unable to report on that date because he wished to make a
survey of the premises at the University of Maryland, where
95 Although Respondent was offered an opportunity to produce such
evidence at a contnued hearing, if necessary, it made no request for such
continuance
16 As already noted, he admitted that he did receive a termination letter
earlier in April, and apparently disputed only that such letter contained the
above-quoted allusion to the April 19 conversation However, to credit him,
it would be necessary to assume that Halsted fabricated the copy of the April
28 letter produced at the hearing Notwithstanding his many other
shortcomings as a witness, I am reluctant to indulge in such an assumption
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was to begin work on April 21; that several days later he
failed to keep an appointment with Halsted to discuss his
future with Respondent , pleading a transportation problem;
that on April 28 he was notified by Halsted of his
termination because of his unavailability for full -time work,
and that thereafter Halsted refused to consider him for even
part-time work.
However , the question still remains (a) why Respondent
on March 27, took Sullivan off his job at Crown Cork,
and (b) why Halsted did not prior to April 19, offer
Sullivan another full-time, day job. As to (a), Halsted's
only explanation was that , in response to the client's com-
plaint about the calibre of the guards assigned to it, he
decided to replace Sullivan with a guard lieutenant . Howev-
er, there was no denial of Sullivan's testimony that the
day after his removal from Crown Cork he observed at
his old station a new guard other than the lieutenant,
and Respondent did not attempt to explain why the new
man appeared on Sullivan 's former shift. Absent such expla-
nation , it is inferred that Sullivan 's permanent replacement
was not , as Halsted claimed , the guard lieutenant but
a rank-and-file guard , and that Halsted 's explanation that
Sullivan had to be replaced by a lieutenant to upgrade
the guard complement at Crown Cork was pretextual.
As to (b), while expatiating on his efforts to assign
Sullivan , first , to a night job and then to a part-time
job, Halsted was strangely silent as to any attempt to
find him another full-time, day job, and as to his reason
for not considering Sullivan for such an assignment before
learning that he had found such a job himself." Sullivan's
tenure with Respondent extended , with some interruptions,
over a period of 6 years, and it is clear from the afore-
cited evidence concerning the high rate of turnover among
Respondent 's guards that a guard with Sullivan's long
tenure must have been a rarity and that Sullivan would
not have survived for so long unless he was at least as
competent as the bulk of Respondent 's guards. This circum-
stance reflects not only on the credibility of Halsted's
testimony that Sullivan had to be replaced because of
a complaint about his qualifications, but more especially
on Halsted's failure to offer Sullivan another day-shift assign-
ment.
Accordingly, while it has been found that Halsted did,
in fact , offer Sullivan other work , there was no tenable
explanation for relieving him of the more desirable work
he had been doing . In that respect, his case is essentially
no different from those of Heins, Berger , and Hargadon,
all of whom were, also, offered less desirable work for
reasons found to have been specious.48
In view of these circumstances, as well as the finding
above as to Respondent 's knowledge of Sullivan 's union
activity , and Halsted 's admissions to Cawthon regarding
the reprisals visited on union adherents, it is found that
44 As noted above, Halsted testified that on April 12, he offered Sullivan
the part-time job at Adley Freight, after Sullivan expressed an interest in
part-time work However, it is clear from the April 28 letter and Halsted's
own testimony that he did not regard Sullivan as having ruled out any full-
time assignmen t until the telephone call of April 19
4" Compare the pretended replacement of Sullivan by a lieutenant with the
pretended replacement of Hargadon by a private
Respondent 's motive for relieving Sullivan of his assignment
on March 27 and offering him less desirable work was
discriminatory . While any finding that such action was
therefore unlawful is barred by Section 10 (b), it is well
settled that Section 10(b) does not preclude reliance on
such time-barred conduct as background for assessing moti-
vation in connection with later events. Thus, the fact that
Halsted took such discriminatory action on March 27,
may be utilized to evaluate the credibility of his testimony
that his ultimate decision to discharge Sullivan was not
tainted by any discriminatory considerations but was
prompted solely by his irritation with Sullivan's dilatoriness
in reporting his unavailibility for work on April 19, and
his inability to keep his appointment with Halsted a few
days later It is inherently improbable that the same consider-
ations which caused Respondent to relieve Sullivan of his
daytime job did not to some extent , at least , enter into
Halsted 's decision to terminate Sullivan or that , absent
such discriminatory considerations, Halsted would have
permitted his pique over a broken appointment to blind
him to exigencies of Respondent 's manpower situation.
This conclusion is reinforced by the striking disparity
between Halsted 's impatience with Sullivan 's lack of punctu-
ality and his toleration of Placek 's more numerous and
serious derelictions.
Apart from this, it would seem that, whatever the motive
for Sullivan 's eventual discharge , the fact remains that
it was the discriminatory removal of Sullivan from his
post at Crown Cork which set in motion the train of
events that culminated in that discharge , and that it it
may therefore properly be deemed to be the product of
discrimination and hence unlawful.49
For all these reasons, it is found that Sullivan was termi-
nated on April 28, because of his known or suspected
union activity and that Respondent thereby violated Section
8(a)(3) and (1).
IV. THE REMEDY
It having been found that Respondent violated Section
8(a)(1), and (3) of the Act, it will be recommended that
it be required to cease and desist therefrom and take
appropriate , affirmative action . Such action will include
an offer of reinstatement to all eight discriminatees and
reimbursement for any loss of earnings suffered by reason
of the discrimination against them. Backpay shall be comput-
ed in accordance with the formula stated in F. W. Woolworth
Company, 90 NLRB 289; interest shall be added to backpay
at the rate of 6 percent per annum . (Isis Plumbing &
Heating Co., 138 NLRB 716.)
In view of the nature of the violations found herein,
particularly the discriminatory discharge, a threat of future
49 Respondent elicited testimony that, at the time he decided to terminate
Sullivan , Halsted reviewed his personnel file, which showed "discharges" for
cause in 1965 and 1968 (the latter being, as found above, a discriminatory
suspension) However, Halsted did not attribute his discharge decision to
those matters , and Respondent does not appear so to contend , but cites such
past discharges only as impeaching the credibility of Sullivan's denial that
they had taken place I have given due weight to this matter (but only insofar
as it involves the 1965 discharge) in appraising Sullivan's credibility, and
have , in general , not credited him where contradicted
WALTER KIDDE, INC. 1025
violations exists which warrants a broad cease-and-desist
provision.
CONCLUSIONS OF LAW
1. Walter Kidde, Inc., is an Employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
and business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees about their union
sentiments and those of other employees and about their
contacts with Union agents, by engaging in surveillance
of union activities and soliciting employees to engage in
such surveillance, by threatening reprisals against union
agents and against employees on account of employee union
activities, and by confiscating union cards in the possession
of employees, Respondent has violated Section 8(a)(1) of
the Act.
4. By discriminating against John L. Sullivan, James
G. Haynes, Sylvan Placek, Clarence T. Ruby, Harry E.
Hargadon, Joseph R. Heins, William Betz, Sr., and Charles
W. Berger, because of their union activities, Respondent
has violated Section 8(a)(3) and (1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the proceeding and the foregoing'
findings of fact and conclusions of law, it is recommended
that Walter Kidde, Inc., its officers, agents, successors,
and assigns , shall be required to:
1. Cease and desist from:
(a) Discouraging membership in, and concerted activities
on behalf of, Local No. 8, International Union of Police
and Protection Workers, IWA, or any other labor organiza-
tion, by discriminating against employees in regard to their
hire or tenure of employment of any term or condition
of employment.
(b) Coercively interrogating employees about their union
sentiments or those of other employees, and about their
contacts with union agents, engaging in surveillance of
such activities , soliciting employees to engage in such surveil-
lance , threatening reprisals against Union agents and against
employees on account of employee union activity, and
confiscating union cards.
(c) In any other manner , interfering , with , restraining,
or coercing its employees in the exercise of their right
to self-organization, to form, join, or assist the above-
named Union , or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except as
provided in the proviso to Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Make whole John L. Sullivan, James G. Haynes,
Sylvan Placek, Clarence T. Ruby, Harry E Hargadon,
Joseph R. Heins, William Betz, Sr., and Charles W. Berger,
in the manner set forth in the section of the Trial Examiner's
Decision entitled "The Remedy," for any loss of pay they
may have suffered by reason of the Respondent's discrimina-
tion against them, and offer them immediate reinstatement
to their former jobs or, if they no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges.
(b) Notify the aforenamed employees, if presently serving
in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military Training
and Selective Service Act, as amended, after discharge
from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary
to analyze the amounts of backpay due under the terms
of this Order.
(d) Post at its guard offices in the Baltimore Metropolitan
area copies of the attached notice marked "Appendix.""
Copies of said notice, on forms to be provided by the
Regional Director for Region 5, shall, after being duly
signed by Respondent's representatives, be posted by
Respondent immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken
by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith."
IT IS FURTHER recommended that all allegations of the
complaint which have not been sustained be dismissed.
50 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, recommendations, 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 shill be deemed waived for all purposes In the event that the Board's
Order is enforced by a judgment of a United States Court of Appeals, the
words in the notice reading "Posted by Order of the National Labor
Relations Board" shall be changed to read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
51 If this Recommended Order is adopted by the Board, this provision
shall be modified to read "Notify said Regional Director in writing, within
10 days from the date of this Order, what steps the Respondent has taken tc
comply herewith "
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights-
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative of
their own choosing
To act together for collective bargaining or other aid
or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discharge employees or otherwise
discriminate against them because of their interest in
Local No. 8, International Union of Police and
Protection Workers, IWA, or any other union.
WE WILL NOT watch out for union activities of our
employees or ask employees to keep us informed of
such activities.
WE WILL NOT threaten to jail or otherwise harm
union agents for talking to you about unions or
threaten to discharge any employees for union
activity.
WE WILL NOT ask you how you feel about a union or
what you know about the union activities of other
employees or about visits by union activities of other
employees or about visits by union agents to guard
locations
WE WILL NOT confiscate or attempt to confiscate
union cards in the possession of our employees.
WE WILL offer to take back John L. Sullivan, James
G. Haynes, Sylvan Placek, Clarence T. Ruby, Harry
E. Hargadon, Joseph R. Heins, William Betz, Sr ,
Charles W. Berger at their old jobs and pay them for
all the wages they lost because of their discharge.
All our employees are free to belong, or not to belong, to
Local No. 8, International Union of Police and Protection
Workers, LEA
WALTER KIDDE, INC.
(Employer)
Dated By
(Representative)
(Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Federal
Building Room 1019, Charles Center Baltimore, Maryland,
Telephone No. 301-962-2822
.: U S GOVERNMENT PRINTING OFFICE 1973 0 - 493- 208