Tribuiani's Detective Agency

National Labor Relations Board - Board Decisions

Dec 12, 1977

233 N.L.R.B. 1121 (N.L.R.B. 1977)

TRIBUIANI'S DETECTIVE AGENCY
Tribulani's Detective Agency, Inc. and Local # I,
International Union of Security Officers and Local
5, National Federation of Guards, Party in
Interest. Case 4-CA-8209
December 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 30, 1977, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, the Respon-
dent filed an answering brief, and the Party in
Interest filed a memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Tribuiani's
Detective Agency, Inc., Philadelphia, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge: The
charge herein was filed on September 10, 1976,' by Local
# 1, International Union of Security Officers, herein called
Local I, the Union, or the Charging Party. A complaint
thereon was issued by the General Counsel of the National
Labor Relations Board on November 30, alleging that
Tribuiani's Detective Agency, Inc., herein called Respon-
dent or Employer, violated Section 8(aX2) and (1) of the
Act by the actions of its supervisor, Bernard Patton, in
soliciting authorization cards and dues-checkoff authoriza-
tions on behalf of Local 5, National Federation of Guards,
herein referred to as Local 5, and by granting recognition
to and signing a collective-bargaining agreement with
Local 5 at a time when Local 5 did not represent an
uncoerced majority of Respondent's employees. An answer
thereto was timely filed by Respondent. Pursuant to notice,
the hearing was held before me at Philadelphia, Pennsylva-
nia, on January 20, 1977. Briefs have been duly filed by
General Counsel, Respondent, Charging Party, and Local
5, which have been duly considered.
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Pennsylvania corporation engaged in
providing security guard and private investigation services,
maintaining offices in Philadelphia, Pennsylvania. During
the past year, Respondent in the course and conduct of its
business operations provided services valued in excess of
$50,000 to firms engaged in interstate commerce on other
than an indirect inflow or outflow basis. The complaint
alleges, Respondent admits, and I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union and Local 5 are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
1. Patton's supervisory status
The record herein discloses that Patton is employed by
Respondent as captain of its force of some 104 security
guards. As such, Patton is the highest ranking uniformed
employee and the only captain. There are 2 lieutenants and
some 14 to 16 sergeants. Patton has more seniority with
Respondent than any other uniformed employee.
Patton normally works 3 or 4 days a week, from 25 to 43
hours per week, primarily in Respondent's office. He works
on Monday and Tuesday from 5 to II p.m., and sometimes
on Saturday and/or Sunday in the absence of Helen
Tribuiani, the general manager and top official of Respon-
dent. While it appears that the weekly schedule of guard
assignments is made up by Tribuiani, Patton has the
responsibility for obtaining other guards to cover for
absenteeism in the scheduled assignments. Patton contacts
nonworking guard employees by telephone, utilizing a
listing of all guard employees of Respondent. Patton also
has the authority to assign overtime to employees when
necessary to cover for absenteeism. When the need arises
because of absenteeism, Patton has the authority to
reassign guards from one location to another.
As to wages, Patton is paid at the hourly rate of $3 per
hour. This is 5 cents more per hour than sergeants and 25
cents more per hour than guards. Lieutenants are salaried
at $190 per week.
"Patrol Supervisors," that is, lieutenants, captains,
inspectors, and investigators, which classifications obvious-
ly include Patton, were excluded from the contract unit in
I All dates herein refer to 1976 unless otherwise indicated.
233 NLRB No. 174
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the collective-bargaining agreement signed by Local 5 and
Respondent on July 9.
With respect to the matter of employee complaints,
section I of Respondent's "General Orders" (par. 6)
provides for written complaints to be submitted through
the "chain-of-command" with the captain as the first step
in the procedure.
2. Solicitation of cards by Patton and the
recognition of Local 5 by Respondent
At the hearing General Counsel, Respondent, and the
Charging Party entered into the following stipulation:
The undersigned parties hereby agree to the following
stipulations of fact:
1. The National Federation of Guards is an organiza-
tion in which employees participate.
2. The National Federation of Guards exists for the
purpose, at least in part, of dealing with employers
concerning grievances, labor disputes, wages, rates of
pay, hours of employment, or conditions of work.
3. From on or about March 10, 1976, to on or about
mid-April, 1976, Bernard Patton solicited 15-20 em-
ployees to sign authorization cards for the National
Federation of Guards. During this period, the Employ-
er neither directed Patton to engage in such activities
nor had any knowledge that Patton was engaging in
such activities. The Employer did not gain such
knowledge until after the unfair labor practice charge
in this matter was filed on September 10, 1976.
4. On or about April 20, 1976, the National Federa-
tion of Guards presented the Employer with authoriza-
tion cards signed by a majority of the Employer's
uniformed employees.
5. On or about April 20, 1976, the Employer em-
ployed approximately 104 uniformed employees.
The stipulation was received into evidence over the
objection of Local 5 to paragraphs 3 and 4 thereof.
Patton, although subpenaed by the General Counsel, did
not appear and did not testify as a witness in this case. In
fact, apart from the stipulation, the General Counsel
offered no testimony concerning that portion of the
complaint dealing with the solicitation of authorization
cards by Patton.
As to paragraph 4 of the stipulation, Tribuiani testified
that in April 1976 a representative of Local 5, Mr.
Tamburaini, came to her office and showed her authoriza-
tion cards signed by a maximum of some 75 employees on
behalf of Local 5.
Thereafter, on July 9, based on the above majority
showing of interest among its employees, Respondent
2 This checkoffauthorization reads:
In compliance with the provisions of the Labor-Management
Relations Act of 1947, 1, the undersigned do hereby as provided in the
entered into a collective-bargaining agreement with Local 5.
3. Solicitation by Patton of employees to sign
dues-checkoff authorizations
The contract between Respondent and Local 5 includes
a union-security clause and a dues-checkoff provision as
follows:
ARTICLE IV. CHECK-OFF
During the term of the Agreement the Employer will
deduct from the pay nearest the 15th of each month
Union initiation fees (if any) and membership dues for
its employees in the bargaining unit who furnish the
Employer with a voluntarily signed check-off authori-
zation card. All money so deducted will be forwarded
promptly to the Union. If the Employer shall or refuse
to remit fees and dues to the Union by the 21st day of
each month, then and in such event the Employer shall
pay to the Union a late payment fee, one per cent of
each employees [sic] annual wages for each pay period
of delinquency and the Employer shall, at the Union's
demand, forthwith make available to the Union all
payroll records and other books and records as the
Union may require. All fees and dues collected by the
Employer shall be segregated from other funds and
shall be considered employee funds for which the
Employer acts as fiduciary. Late payment fees shall be
deemed a contractual obligation from Employer to the
Union payable on demand and shall bear interest of six
per cent per annum if not so paid. The provisions of
this Article, may at the election of the Union, be
enforced in law or equity in lieu of arbitration.
Maria Jones, a former guard employee of Respondent,
testified that, on a Saturday shortly before she was
discharged in August 1976, she called Respondent's office
to get her work schedule for the following week. She spoke
to Patton who told her that he could not give her the
schedule until she came to the office and spoke to the
"union" man. She went to the office, and when she arrived
Patton was there along with George Combs, another guard
employee, and a union man whose name Jones could not
recall. Patton gave her three papers and she was asked by
Patton and the union man to read and sign them. Patton
also told her "[Y]ou need this union because you have
discrepancies about the hours and your schedule and you
don't like to obey orders." Jones briefly read the docu-
ments given to her by Patton and signed them. Jones
identified one of the documents as the "Dues and Initiation
Check-Off Sheet" which appears in evidence as General
Counsel's Exhibit 6.2 She gave the signed documents back
to Patton who then gave her the work schedule.
said Act, direct and authorize my Employer to deduct from wages to be
earned by me, union initiation fee plus monthly dues as may be
directed by the above Union, in accordance with the Constitution and
by-laws of the above Union, which are required to maintain me as a
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TRIBUIANI'S DETECTIVE AGENCY
George Combs, the other former guard employee
present, testified that on a Friday in July 19763 he went to
Respondent's office to pick up his check. Patton took him
into an inner office not normally open to employees. A
union representative was in the office whose name Combs
could not recall. The union representative spoke to him
about the benefits available through the Union and gave
him three papers. Combs asked the union representative
certain questions and Patton directed him to sign the dues-
checkoff authorization.
According to Combs, Patton also said, "Combs, you
ought to be lucky to sign this card because if it was left up
to me you wouldn't of had no job." Combs also testified to
the following exchange:
Q. Okay. Did you sign the cards?
A. I ended up signing it after he told me that I was
lucky that I would have the job-you know.
Q. And who told you that?
A. Captain Patton. Captain Patton told me. So I
signed the card.
Combs then signed the documents including the checkoff
authorization.
B. Analysis and Discussion
I. Patton's supervisory status
The facts relevant to the supervisory issue are set forth
above in some detail. It is my opinion that this evidence
and the entire record herein establishes that Patton is a
supervisor within the meaning of Section 2(11) of the Act.
2. Solicitation of authorization cards by Patton
and recognition of Local 5 by Respondent
Having concluded that Patton is a supervisor, I find that
his solicitation of authorization cards as set out in the
stipulation was unlawful, despite the contention made by
Respondent that it was not responsible for the actions of
Patton since it was unaware that these solicitations were
made until well after they took place. Further, the naked
stipulation is devoid of any evidence concerning the
circumstances of the individual solicitations which is
necessary to any finding of illegality. However, even
finding, as I do, that Respondent was unaware of Patton's
solicitations, this does not absolve Respondent from
liability for Patton's acts. It is true that the only evidence
concerning the solicitation by Patton is the stipulation
itself, however, the evidence also discloses that Patton was
the only captain of the complement of security guards and
as such was the highest ranking uniformed employee
member in good standing in said Union. My Employer is further
authorized and directed to turn over the said monies as they become
due to the Union. This authorization and assignment shall be
irrevocable for the term of the applicable contract between the Union
and the Company, or for one year, whichever is the lesser, and shall
automatically renew itself for successive yearly or applicable contract
periods thereafter, whichever is the lesser, unless I give written notice to
the Company and the Union at least 60 days and not more than 75 days
before periodic renewal date of this authorization and assignment of
my desire to revoke the same.
supervisor and the only one holding that rank. Having thus
employed Patton in such a supervisory position, Respon-
dent is not free to disassociate itself from Patton's illegal
activity. Yonkers Hamilton Sanitarium Inc., 214 NLRB 668,
677 (1974).
There remains for disposition the allegation that Respon-
dent unlawfully extended recognition to and subsequently
entered into an illegal collective-bargaining agreement with
Local 5. Stipulation in this regard establishes only that
Patton solicited 15 to 20 authorization cards and that Local
5 presented Respondent with authorization cards signed by
a majority of its employees. 4 The record herein is devoid of
evidence concerning the disposition of those cards solicited
by Patton. Patton did not testify nor did any Local 5
official or employee; nevertheless, the General Counsel
urges me to conclude that the authorization cards solicited
by Patton were in fact submitted to Respondent on April
20. This I cannot do since it requires making an assump-
tion which in my opinion is unwarranted. It cannot be
assumed from the fact that Patton solicited authorization
cards that any of the cards so solicited were submitted to
Respondent. Nor does the mathematics of the situation
compel such a result. Tribuiani testified that a maximum of
about 75 cards were submitted in a unit of about 104. It is
obvious that, even given the maximum figure of 20 cards
solicited by Patton, it would not have been necessary for
any of the 75 cards submitted to have been solicited by
Patton. The unit could have been as small as 95 and this
would still have been true. To assume that some or any of
the cards submitted to Respondent were solicited by
Patton is rank speculation in which I decline to indulge.
The General Counsel argues that Local 5 has the burden
of showing that the cards obtained by Patton were not
among those submitted to Respondent. In this regard I
note that Tribuiani's Detective Agency, and not Local 5, is
the respondent in this case. I am unaware of any rule of law
imposing a burden of proof on one not a party to the
litigation. Second, it is axiomatic that the burden of
establishing the allegations of the complaint attaches to the
General Counsel. In the instant case the General Counsel
has alleged unlawful recognition by Respondent because of
tainted cards. Nothing in the circumstances of this case
convinces me that any reason exists for departing from the
principle of law which requires the General Counsel to
establish what he alleges.
In short the General Counsel has not established that
any of the authorization cards submitted to Respondent
were tainted. I cannot conclude therefore that either the
recognition of Local 5 or the execution of the subsequent
collective-bargaining agreement were unlawful and I shall
recommend that those allegations be dismissed.
3 Combs testified that Maria Jones came into the office during this
conversation. While there is some confusion in the testimony of both Jones
and Combs concerning the date of these conversations, an evaluation of the
entire record convinces me that both were in attendance and that they took
place sometime after the contract had been signed on July 9. The exact date
is not material to my findings.
4 The stipulation, as written, does not clearlyv establish that Patton
actually obtained any signed authorization cards from employees, only that
he solicited them to sign. However, since the briefs of the parties appear to
concede it, I shall interpret the stipulation as meaning that Patton actually
obtained signed authorization cards from 15 to 20 employees.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Patton's solicitation of dues-checkoff
authorizations
The testimony is unrebutted that Patton, at the offices of
Respondent, brought employees into contact with a Local
5 representative and that he urged them to sign a document
authorizing Respondent to deduct initiation fees and dues
from their wages. The authorization signed by Jones is in
evidence. It is well established that employees may not be
required to execute such checkoff authorizations; such
authorizations must be voluntary on the part of the
employees. Jo-Jo Management Corp. d/b/a Gloria's Manor
Home for Adults, 225 NLRB 1133 (1976); Vic's Shop'N
Save, 215 NLRB 28 (1974). Patton's participation in the
solicitation and inducement of Jones and Combs to sign
the dues-checkoff authorizations constitutes interference
with the free choice of employees in this regard and hence
violates Section 8(a)(2) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tion described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
As noted above, I have found that Respondent violated
Section 8(a)(2) of the Act by inducing and soliciting
employees to sign a card authorizing Respondent to check
off dues from their wages. General Counsel urges that the
employees should be reimbursed for all dues withheld from
their wages. However, reimbursement is not appropriate
since the obligation to pay dues is a continuing valid
contractual employee obligation under union-security
provisions of the contract despite the illegality of the
method employed by Respondent. International Union of
Electrical, Radio and Machine Workers, Local 601, AFL-
CIO (Westinghouse Electric Corporation), 180 NLRB 1062
(1970).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union and Local 5 are labor organizations
within the meaning of Section 2(5) of the Act.
3. Bernard C. Patton is a supervisor within the meaning
of Section 2(11) of the Act.
4. Respondent through its supervisor, Patton, solicited
employees to sign authorization cards for Local 5, National
Federation of Guards, in violation of Section 8(a)(2) of the
Act.
5. Respondent through its supervisor, Patton, induced
and solicited employees to sign dues-checkoff authoriza-
tion cards on behalf of Local 5, National Federation of
Guards, in violation of Section 8(a)(2) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby issue
the following recommended:
ORDER 5
The Respondent, Tribuiani's Detective Agency, Inc.,
Philadelphia, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Soliciting employees to sign authorization cards on
behalf of Local 5, National Federation of Guards.
(b) Inducing and soliciting employees to sign dues-
checkoff authorization cards on behalf of Local 5, National
Federation of Guards.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Post at its facilities at Philadelphia, Pennsylvania,
copies of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional Director
for Region 4, after being duly signed by Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 4, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act other
than as specifically found herein.
5 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
I 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit employees to sign authorization
cards on behalf of Local 5, National Federation of
Guards.
1124
TRIBUIANI'S DETECTIVE AGENCY
WE WILL NOT induce and/or solicit employees to
sign dues-checkoff authorization cards on behalf of
Local 5, National Federation of Guards.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
TRBUIANI's DETECTIVE
AGENCY, INC.
1125