General Plant Protection Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 647 (N.L.R.B. 1961)

GENERAL PLANT PROTECTION CORPORATION 647
and WE WILL NOT interrogate employees or applicants for employment con-
cerning their union membership , attitude , sympathies , or activities in a manner
constituting interference , restraint , or coercion within the meaning of Section
8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to self-organization , to form, join, or
assist the above -named or any other labor organization , to bargain collectively
through representatives of their own choosing , to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment , as authorized in Section 8 (a) (3) of the Act, as
amended.
WE WILL, upon request, bargain collectively with the above-named labor
organization as the exclusive bargaining representatives of all employees in the
following unit with respect to rates of pay, wages, hours of employment, and
other conditions of employment , and, if an understanding is reached , embody
such understanding in a signed agreement. The bargaining unit is: All em-
ployees of our plant in Reedsville , West Virginia, excluding supervisors as de-
fined in the Act.
WE WILL resume trucking service with our own employee drivers.
WE WILL offer to Loren White and Curtis White, if physically able, imme-
diate and full reinstatement to their former or substantially equivalent positions
as truckdrivers, without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by them.
WE WILL, upon application , offer the following employees immediate and
full reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , and make them whole
for any loss of pay they have suffered by reason of our refusal to reinstate
them.
David L. Adams Kenneth G. Croft
Darwin Bohan Joseph P. DeSantis
Buck D . Cole Keith E. McKinney
Jack L. Cole Ronald L. Waybright
Donald Matthews
WE WILL further make Donald Matthews whole for any loss of earnings he
may have suffered from March 4 to May 4, 1961, and the remaining employees,
listed in the preceding paragraph, whole for any loss of earnings they may have
suffered from April 18 to May 4, 1961.
All our employees are free to become , remain , or refrain from becoming or re-
maining, members of any labor organization , except to the extent that this right may
be affected by a lawful agreement requiring membership in a labor organization as
a condition of employment.
PRESTON FEED CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
General Plant Protection Corporation and United Plant Guards
Amalgamated , Local No. 5. Case No. 19-CA-2213. November 22,
1961
DECISION AND ORDER
On September 6, 1961, Trial Examiner William Spencer issued his
Intermediate Report, finding that the Respondent had engaged in and
was engaging in unfair labor practices in violation of Section 8 (a) (3)
134 NLRB No. 68.
'648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (1) of the Act and recommending that it cease and desist therefrom
and take affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are affirmed. The Board has considered
the Intermediate Report and the entire record in this case, including
the exceptions and the brief, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the correc-
tions and additions indicated below.'
ORDER
The Board adopts the Recommendations of the Trial Examiner with
the modification that provision 2(c) read, "Notify the Regional Di-
rector for the Nineteenth Region, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply
herewith." 2
, We hereby correct the Intermediate Report to show that Respondent's full complement
of personnel on material dates was 124, and that this complement was distributed over
several missile base sites, of which Newman Lake was one. We note Respondent's excep-
tion to so much of the findings as rest on the Respondent's failure to recall Cochran when
it had need for additional employees Respondent claims total unawareness that Cochran
desired reemployment following his layoff. Assuming without so deciding that specific
knowledge of,Cochran's desire to be reemployed is material to the issues, we find no merit
In such contention
In addition to the facts set forth in the Intermediate Report, the record establishes that
the charge in the instant case was mailed to the Respondent on May 11, 1961, and that
Respondent did nothing before or after that date either to offer Cochran reemployment or
otherwise to dissipate the effect of its Inclusion, in Cochran's personnel file, of the state-
ment: "Disloyal to the Company, Rehire, No "
2In the notice attached to the Intermediate Report as the Appendix, the words "A
Decision and Order" are hereby substituted for the words "The Recommendation of a
Trial Examiner " In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and
Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing
an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case, involving the Respondent's alleged discharge and refusal to reinstate a
single employee because of his activities on behalf of United Plant Guards Amalga-
mated, Local No. 5, the Union herein, was heard by William E. Spencer, the duly
designated Trial Examiner of the National Labor Relations Board, herein called the
Board, in Spokane, Washington, on July 18, 1961.
Upon the entire record in the case, and upon my observation of witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
General Plant Protection Corporation, a California corporation with its executive
offices located in Los Angeles, California, is engaged in providing guard services for
GENERAL PLANT PROTECTION CORPORATION 649
the protection of industrial and business properties , and properties owned or main-
tained by the United States Government for the national defense. Since January 21,
1961, the Respondent has been performing guard services for the Astronautics Divi-
sion of Convair , which division is engaged in installation of missile sites for the
United States Government in the vicinity of Spokane, Washington. These services
are valued at in excess of $50,000 annually.
II. THE LABOR ORGANIZATION INVOLVED
United Plant Guards Amalgamated, Local No. 5, is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
Peter Lee Cochran was hired by the Respondent on January 21, 1961, as a plant
guard at its Newman Lake site. Respondent 's supervisors on this operation are
Dolphine Harold Cailson, manager of the guard force, Lt. Leland R. Crisp, day-shift
supervisor, and, apparently, other lieutenants. There are also site sergeants who re-
ceive a somewhat higher wage than guards and who channel information and orders
from their superiors to the guard force but who are not shown to have supervisory
status within the meaning of the Act.
About March 24, Cochran addressed a note, enclosing a letter written by William
N. Boudreau, the Union's business agent, to all site sergeants, requesting that they
make a survey of guards on their respective sites to ascertain if a majority favored
affiliating with the Union. Boudreau's letter, written in response to an inquiry by
Cochran, explained the nature of the Union's operations and organizational methods,
and made reference to a wage scale it had obtained for employees at another location.
This wage scale was substantially higher than that paid by the Respondent. Cochran's
note and enclosed letter were returned to him by a site sergeant with the notation in
handwriting, "I find none of my men at all interested, mainly due to the short dura-
tion of this job."
As of April 1, Respondent's guard force at Newman Lake numbered 124. On or
about that date Carlson was notified that he would have to reduce this guard per-
sonnel to 115. This was done by voluntary terminations. During this period of
reduction, Cochran admittedly informed a Lieutenant Clemons, in a telephone con-
versation, that "if they were reducing the force more that it was all right with [him]
if [he] was laid off." He testified that he did this because the reduction in force and
the talk of an early shutdown of the project kept him in such a state of suspense that
he wanted to get it over with. Lieutenant Crisp testified that Cochran told him, or
he inferred from what Cochran told him, that Cochran felt that he was in better posi-
tion economically to suffer a layoff than other guards and for that reason volunteered
for the next layoff. This Cochran denied and denied as well that he spoke at all to
Lieutenant Crisp in the matter.
On April 17, Cochran 's site sergeant , Barthel , informed him that his employment
with the Respondent was being terminated as of that date. Cochran called Crisp by
telephone and Crisp confirmed the termination. Crisp, in response to Cochran's
inquiry, informed him that a further reduction in force was the sole reason for the
termination . On the following morning, Cochran went to Respondent 's office to get
his check and to return his guard uniform. A Sergeant Thomas checked Cochran's
uniform and when Cochran informed him that an ID card, requested by Thomas,
had not as yet been issued to him, referred to Cochran's personnel folder. While
Thomas was searching the folder for the ID card, Cochran saw that the folder con-
tained a paper bearing Carlson's signature on which was written in large letters,
"Disloyal to the Company, Rehire, No."
A few days later Cochran called Carlson, told him that he objected to the notation
he had seen in his personnel file, and invited Carlson to have dinner with him that
they might discuss the matter. Shortly thereafter Carlson accepted the invitation and
in the conversation which ensued, Cochran asked, "Why did you put down that I was
disloyal to the company and rehire, no?" Carlson replied that he did not like to "be
paying a man and have him stab him in the back." Carlson then said that the
Boudreau letter which Cochran had circulated through the site sergeants would have
been all right except for the paragraph relating to a wage increase , that it "was like
waving a red flag in front of a bull ." There was some accompanying general discus-
sion in which Cochran sought to justify his position with respect to the Union. In
response to Cochran 's request that the memorandum Carlson had put in his personnel
file be changed , Carlson gave no direct answer but said he would put a memorandum
in Cochran's file. Cochran asked that a copy of such memorandum be sent to him.
Carlson , in a report to Respondent's head office, stated that he had had dinner with
Cochran and after checking with some of the men whom Cochran associated with
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ascertained that Cochran never "said anything but good about the organization."
The report ended, "Frankly, I think he was being used and didn't realize it." Carlson
admitted that because of the pressure of other business he had not changed the mem-
orandum which he had placed in Cochran's personnel file, but stated his intention to
do so.'
Admittedly, the Respondent has hired some eight guards since Cochran's employ-
ment was terminated. Its explanation of its failure to recall or reinstate Cochran is
that he made no application and those who were hired were applicants for
employment.
With respect to Cochran's discharge on April 17, Carlson testified that on that date
he received a verbal directive that "one additional space" would be reduced. The
effect of this was to remove one guard from the identification office. At the time this
position was filled by Robert Powell. Powell was not discharged, however, but was
transferred to another location, and Swanson, a guard then working in another loca-
tion, was granted a prior request to be transferred to Newman Lake. To effectuate
the transfers and the required reduction in force, Cochran was discharged.
Carlson testified that he discussed Cochran's discharge with Crisp. "Lieutenant
Crisp came in and talked about who the man was that we should reduce. Lieutenant
Crisp informed me that Peter Cochran had informed him earlier that if a reduction
in force was made that he could be one of the men selected because he had something
else to fall back on or words to that effect. Also he informed me at that time that
he had received reports that Peter Cochran did not perform the required duties on
the weekends, also that Peter Cochran had not phoned the Control Center on one
occasion for sure when he was absent. The other time, the next day that he was
absent, it was not positive whether or not he phoned. I think he phoned the sergeant
out at the site and informed the sergeant he wouldn't be in."
I infer from this testimony that Carlson would have it accepted that Cochran was
not discharged solely because of a reduction in force but also for the enumerated de-
linquencies in his conduct as a guard. If such considerations entered into the dis-
charge decision, Cochran was not informed of them. The sole reason given him for
his discharge was that it was required by a reduction in force. Cochran was never
reprimanded or in any way criticized for his performance of his duties as a guard,
and I am convinced that these matters referred to in Carlson's testimony were after-
thoughts which actually constituted no part of Respondent's decision to discharge
Cochran. I also credit Cochran in his denial that he ever spoke directly to Crisp
about being included in the next layoff, but have no doubt that his statement to
Lieutenant Clemons came to Crisp's notice. This volunteered statement, I am fur-
ther convinced, provided a ready pretext for the Respondent to rid itself of an em-
ployee who, because of his circulation of the Boudreau letter, was regarded by
Carlson as "Disloyal to the Company."
The April 15 reduction in force from 124 to 115 guards was accomplished without
the discharge of a single guard, entirely on the basis of voluntary terminations.
Cochran was in fact not only the first guard to be discharged allegedly because of a
reduction in force, but the only one, and that was accomplished only in a round-
about way by accomplishing two transfers, one from the job vacated, and another
to Newman Lake, the site of Cochran's employment. It would seem that had con-
siderations not entered into the discharge decision other than Cochran's statement to
Lieutenant Clemons, before making that discharge effective, the Respondent would at
least have verified through Cochran himself that he had made such a statement and
was willing to sacrifice his job in order to permit another guard's transfer. Even
less satisfactory than its explanation of the discharge was Respondent's excuse for its
failure to recall or rehire Cochran. When Cochran's personnel file contained
Carlson's memorandum, "Disloyal to the Company, Rehire, No." and still contained
it at the time of the hearing in this matter, obviously there would be no requirement
that Cochran make the futile gesture of an application.
Upon the entire evidence, it is found that the Respondent discharged Cochran, and
thereafter refused to reinstate him, because of his protected union activities, and
thereby violated Section 8(a)(3) and, derivatively, Section 8(a) (1) of the Act.
The testimony follows:
Q. (By Mr BECKER ) Mr Carlson, as a result of the conversation with Mr.
Cochran, had you marked him "eligible" for rehire with the company?
A. No, sir, I haven't
Q. Have you marked out the provision on his record that he was disloyal to the
company?
A No, sir, I haven't.
GENERAL PLANT PROTECTION CORPORATION
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
651
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
.close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent discharged, and thereafter refused to
reinstate Peter Cochran because of his union and concerted activities, it will be
recommended that the Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority and
other rights and privileges, and make him whole for any loss of pay suffered because
of the discrimination against him, by payment to him of a sum of money equal to
that which he normally would have been paid in Respondent's employ from the date
,of the discharge to the date of Respondent's offer of reinstatement, less his net
earnings , if any, during said period. Loss of pay shall be computed upon a quarter-
ly basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
,case, I make the following:
CONCLUSION OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployee, Peter Cochran, thereby discouraging membership in the Union, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) of the Act.
3. By the aforesaid discharge the Respondent has interfered with, restrained, and
-coerced its employees in the exercise of rights guaranteed them in Section 7 of the
Act, and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that the Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization of
its employees, by discharging its employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or condition of
employment.
(b) In any like or related manner interfering with, restraining, or coercing its
-employees in the right to self-organization, to form labor organizations, to join or
assist the Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized in Section
8(a)(3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Peter Cochran immediate and full reinstatement to the position he held
at the time he was discharged, or an equivalent position, without prejudice to his
seniority and other rights and privileges, and make him whole for any loss of pay
he may have suffered as a result of the discrimination against him in the manner
set forth above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its Newman Lake operations.near Spokane,Washington, copies of the
notice attached hereto marked "Appendix" Copies of said notice, to be furnished by
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for the Nineteenth Region , shall, after being duly signed by a
representative of the Respondent, be posted by the Respondent immediately upon.
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith.
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report and Recommended Order, the Respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage affiliation with United Plant Guards Amalgamated,.
Local No. 5, or any other labor organization, by discharging our employees, or
by discriminating in any other manner in regard to their hire or tenure of-
employment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named Union, or any other
labor organization, to bargain collectively through representatives of their own
choosing, and to engage in collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as authorized by the National Labor Relations Act.
WE WILL offer Peter Cochran immediate and full reinstatement to the posi-
tion he formerly held, or its equivalent, without prejudice to seniority or other
rights and privileges, and make him whole for any loss of pay he may have
suffered as a result of the discrimination against him.
GENERAL PLANT PROTECTION CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be.
altered, defaced, or covered by any other material.
Complete Auto Transit , Inc. and Neal Dugger and Robert W.,
Robinson . Cases Nos. 144-CA-2350 and 14-CA-2350-2. Novem-
ber 22, 1961
DECISION AND ORDER
On March 7, 1961, Trial Examiner George J. Bott issued his Inter-
mediate Report in the above-entitled proceeding, finding that Respond-
ent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its.
entirety, as set forth in the Intermediate Report attached hereto..
Thereafter, the General Counsel filed exceptioir3 to the Intermediate
Report and a supporting brief, and the Respondent filed a reply brief.k
1 The General Counsel filed a motion to strike Respondent 's brief to the Trial Examiner
which the Respondent had reflled as part of Its reply brief. The motion is hereby denied,.
134 NLRB No. 59.