Pinkerton's, Inc.

National Labor Relations Board - Board Decisions

Nov 8, 1976

226 N.L.R.B. 837 (N.L.R.B. 1976)

PINKERTON'S, INC. 837
Pinkerton 's, Inc . and Local 71 of the International
Guards Union of America . Case 9-CA-9604
November 8, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On March 30, 1976, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in answer to the General Counsel's ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
In April 1975 Respondent and the Union began
negotiations for a new contract to replace the one
expiring July 5, 1975. During the negotiations Re-
spondent proposed a reduction in the workweek
from 48 to 40 hours with a compensating increase in
the hourly rate. This proposal was unacceptable to
the Union.
On July 6, shortly after the expiration of the con-
tract, the Company decided to put into effect its re-
duced workweek proposal and on July 13 began re-
scheduling employees' work hours in implementation
of the change.
Thereafter, at a negotiation session on July 28, Re-
spondent made a new proposal to the Union which
consisted of giving the employees the option of re-
taining their 48-hour workweek with a small hourly
raise in pay or working a 40-hour week with a larger
raise in their hourly rate. Thomas Dobbs, the presi-
dent of the Union, was asked to submit the Respon-
dent's new proposal to the union membership for rat-
ification at an August 2 meeting.
On July 31, 3 days later, Davis Liverett, one of the
Company's negotiators at the bargaining sessions,
visited Dobbs at the Fall City Brewing Company
worksite to discuss the proposed ratification meeting.
Upon being informed by Dobbs that Dobbs did not
recall agreeing to arrange such a meeting and that
such a meeting could not be arranged, Liverett re-
sponded that Dobbs "could be in trouble" over this.
That same day, Dobbs' hours were reduced from
48 to 40 hours. Also on that day, Respondent made
known its intention that it would not agree to a con-
tract without a clause which shielded from union dis-
cipline those employees who worked during a strike
which had been staged by the Union at the expira-
tion of the old contract.
Eventually on November 14, 1975, the Union and
Respondent agreed to a contract incorporating Re-
spondent's July 28 proposal.
The complaint alleged that Respondent violated
Section 8(a)(5) by: (1) unilaterally reducing the work
hours of its employees prior to a bargaining impasse,
and (2) insisting upon a clause shielding nonstriking
employees from union discipline as a condition to
agreement on a contract. The complaint also alleged
that Respondent violated Section 8(a)(3) by discrimi-
natorily reducing Thomas Dobbs' working hours and
that Respondent violated Section 8(a)(1) by threaten-
ing Dobbs that he could be in trouble because of his
union activities.
We agree, contrary to our dissenting colleague,
with the Administrative Law Judge's dismissal of the
8(a)(5) allegations of the complaint. At the outset of
the hearing (and again in his brief), the General
Counsel acknowledged that the contract executed on
November 14, 1975, rendered any 8(a)(5) remedy su-
perfluous. An off-the-record discussion then ensued.
When General Counsel later sought at the hearing to
introduce evidence relevant only to the 8(a)(5)
charge, the Administrative Law Judge admitted it,
but with the caveat that though the evidence might
officially be deemed relevant to the 8(a)(5) charge
"we know we're really not concerned with it in that
sense. . . ." All other evidence touching on the
8(a)(5) complaint allegations was properly intro-
duced and admitted as background to the 8(a)(3) and
(1) allegations. Respondent, quite clearly relying on
the statements of the General Counsel and the Ad-
ministrative Law Judge, presented no evidence with
respect to the 8(a)(5) allegations.
Considering the above, we are unwilling to find
that Respondent's reliance on the statements of Gen-
eral Counsel and the Administrative Law Judge was
misplaced. We agree with the Administrative Law
Judge, who, having been present, is the best judge of
the inflection and impact of the phrases used, that
General Counsel's expression of his position, al-
though perhaps not amounting to a technical with-
drawal of the 8(a)(5) portions of the complaint, "was
tantamount to a withdrawal of them for all practical
purposes." We accordingly deem it unfair to Respon-
dent now to find an 8(a)(5) violation.
We also agree with the Administrative Law
Judge's finding that Liverett's statements to Dobbs,
226 NLRB No. 132
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"You could be in trouble over this," followed by "I
hope you don't get into trouble over this," were not
unlawful threats in violation of Section 8(a)(1) of the
Act. Liverett's remarks came immediately after Liv-
erett told Dobbs that Herb Fetty, the Federal media-
tor, understood that Dobbs had agreed to submit the
Company's latest proposal to the union membership
for ratification. Dobbs, as noted above, had denied
that there was any such understanding. Given the
circumstances, we find it entirely creditable that Liv-
erett was in fact telling Dobbs that Dobbs could get
into trouble with Mediator Fetty over his refusal to
submit the Company's proposal to the union mem-
bership. Liverett explained that his remarks were
prompted by his then naive belief that the Federal
mediator had the power to enforce commitments
made by the parties at the bargaining table.
Additionally, the Administrative Law Judge's find-
ing is reinforced by his appraisal of Liverett as being
an entirely credible witness.
Finally, we agree with the Administrative Law
Judge that the reduction in Dobbs' work hours was
not discriminatorily motivated. Dobbs' hours were
reduced as part of a plan to reschedule all of Respon-
dent employees' work hours, a plan designed to
achieve implementation of the reduced workweek
proposal which Respondent had made before the ex-
piration of the contract. Respondent began resched-
uling employees' hours on July 13 and had by July 31
rescheduled over one-third of its 360 employees.
That Dobbs was the only guard at Fall City Brewing
Company whose hours were reduced on July 31 is
plausibly explained by the fact that Dobbs' situation
was unique-he was the only guard at Fall City who
did not relieve another employee and was not himself
relieved by another employee. His conversion from
one work schedule to another was thus the easiest to
effectuate.
Moreover, we agree with the Administrative Law
Judge's observation that the reduction as punishment
does not seem serious enough to support an inference
of discriminatory motivation-it is undisputed that
Dobbs' hours were sooner or later going to be re-
duced, just as the entire work force's hours were
eventually reduced.
Additionally, the Administrative Law Judge found
Liverett to be a credible witness and accepted his
testimony that he did not direct that Dobbs' hours be
reduced and that the reduction was made by his staff
pursuant to general instructions to convert the entire
guard force to a 40-hour week as soon as possible.
Our colleague's assertion that had Respondent not
been discriminatorily motivated it would have re-
duced Dobbs' hours on July 6, 1975, or shortly there-
after, rather than on July 31, completely ignores the
fact that Respondent did not begin reducing its em-
ployees' working hours until July 13 , and that, once
begun , the process of rescheduling took over 2-1/2
months.
Accordingly, for the foregoing reasons , we will dis-
miss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I would reverse the Ad-
ministrative Law Judge and find violations of Sec-
tion 8(a)(5), (3), and (1) of the Act.
The complaint alleged as violations of Section
8(a)(5) that Respondent (1) unilaterally reduced the
scheduled work hours of employees prior to an im-
passe in the bargaining negotiations and (2) informed
the Union and employees that it would not agree to a
contract without a clause shielding nonstriking em-
ployees from union discipline. The majority affirmed
the dismissal of these allegations on the ground that
statements of counsel for the General Counsel and
the Administrative Law Judge caused Respondent
not to defend against them. I find nothing in the rec-
ord to sustain this conclusion. The statements relied
on by the Administrative Law Judge support a con-
trary conclusion.
In response to the inquiry of the Administrative
Law Judge as to whether, in view of the parties'
agreement on a contract, he wished to withdraw that
portion of the complaint, counsel for the General
Counsel made clear that these allegations were not
withdrawn and that he intended to proceed on them.
His reply stated: ". . . we'd have to proceed on it. I
would be in no position to withdraw it." And the
Administrative Law Judge acknowledged "that the
8(a)(5) allegations were not withdrawn." The General
Counsel introduced evidence to prove those allega-
tions to which Respondent failed to reply. Further,
Respondent recognized these allegations had not
been withdrawn and specifically addressed them in
its brief. No prior assurances were made to Respon-
dent that this issue would not be pursued, nor was
Respondent prevented from presenting evidence with
respect to these allegations. Since, as the Administra-
tive Law Judge acknowledged, the record discloses a
violation of Section 8(a)(5) as alleged in the com-
plaint in Respondent's unilaterally reducing the work
PINKERTON'S, INC
hours of several employees and insisting on a clause
shielding employees who did not strike from union
discipline, no sound reason exists for dismissing the
complaint in this respect.'
As to the 8(a)(1) violation, when Respondent's
Manager Liverett learned that Union President
Dobbs had not called a union meeting to vote on
Respondent's latest contract proposal, he stated to
Dobbs, "You could be in trouble over this," followed
by, "I hope you don't get in trouble over this." These
statements were clearly threatening and coercive.
Liverett's statements to Dobbs about getting into
trouble for failing to call a meeting to discuss an em-
ployer contract proposal indicate his displeasure with
Dobbs and strongly suggest a threat of reprisal for
Dobbs' failure to do so. Liverett's explanation for
this clear violation of Section 8(a)(1), which was ac-
cepted by the Administrative Law Judge and adopt-
ed by my colleagues, that he was merely expressing
an opinion that Dobbs might "get into trouble" with
the Federal mediator, is most unconvincing. There is
no suggestion of any way in which the Federal medi-
ator could cause trouble for Dobbs. Liverett admit-
ted this upon cross-examination. Liverett's admission
that he did not, in fact, believe the Federal mediator
would be the source of any "trouble" completely un-
dermines his lame excuse that his threatening re-
marks had reference only to possible conduct by the
Federal mediator.
Moreover, subsequent events fortify the clear im-
port of the threatening statements. On the same day,
some 4 hours later, Dobbs was informed by his im-
mediate supervisor, Mike Johnson, not to report to
work the next day, which was Friday, and that
henceforth he would be on a 40-hour workweek in-
stead of a 48-hour week. Thus, Liverett's threat that
Dobbs could be in trouble materialized on the same
day the threatening statements were made in the re-
duction in his work schedule from 48 to 40 hours per
week. Liverett's threats that Dobbs "could be in trou-
ble" were an obvious violation of Section 8(a)(1) of
the Act.
Finally, in disagreement with my colleagues, I
would find that Respondent violated Section 8(a)(3)
by discriminatorily reducing Dobbs' hours of em-
ployment from 48 hours to 40 hours per week on
July 31, 1975, because of his failure, as union presi-
dent, to call a meeting to consider Respondent's con-
tract proposal.
The timing of the reduced workweek directive, a
few hours after Liverett's "trouble" statement, clearly
suggests a retaliatory motive. He was not given any
reason why his hours were being reduced. The first
time Respondent advanced a reason for reducing
Dobbs' hours of employment was at the hearing. The
839
Administrative Law Judge suggests that had Respon-
dent taken more serious action toward Dobbs he
would have found a violation of the Act. However,
reducing an employee's work schedule by 8 hours per
week is obviously a serious matter.2
Not only were Dobbs' hours reduced almost im-
mediately after the threat of retaliation, but, from a
group of 11 guards at the Falls City Brewing loca-
tion, Dobbs was the only guard whose work hours
were reduced notwithstanding the fact that only I
other guard had more seniority than he. The hours of
the other full-time guards at Falls City Brewing were
not reduced until September 28, 1975, approximately
2 months later. The Administrative Law Judge ac-
cepted Respondent's explanation that Dobbs was
singled out for a reduction in his hours because he
had a unique position in that he did not relieve any-
one and was not relieved by anyone. It is significant,
however, that Respondent did not reduce Dobbs'
hours immediately after implementing its reduced
week proposal on July 6, 1975. If the reason ad-
vanced by Respondent were not pretextual, it would
have reduced Dobbs' hours on July 6, 1975, or short-
ly thereafter,' rather than on July 31, immediately
after he incurred Liverett's displeasure by refusing to
call a union meeting and immediately after Liverett's
threats that Dobbs "could get into trouble." The
swiftness of the retaliatory action after the threat of
reprisal and the surrounding circumstances belie the
claim of coincidence. I would find a violation of Sec-
tion 8(a)(3) of the Act.
In sum, I would find (1) a violation of Section
8(a)(5) in Respondent's unilateral reduction of hours
of work and insistence on a nonstriker protection
clause, (2) a violation of Section 8(a)(1) in Liverett's
threats that Dobbs "could be in trouble" for refusal
to call a union meeting, and (3) a violation of Section
8(a)(3) in Respondent's swift retaliatory reduction in
Dobbs' hours of work for this refusal. Respondent's
glib explanations for its statutory violations strain
credulity.
1 As an additional reason for dismissing the 8 (a)(5) allegations , the Ad-
ministrative Law Judge relied on a suggestion that any remedy would be
superfluous because the parties have entered into a collective -bargaining
agreement i am at a loss to understand this suggestion Certainly the em-
ployees whose hours were unilaterally reduced from 48 to 40 would be
entitled to be made whole for their loss of earnings until the collective-
bargaining agreement became effective Under the new agreement employ-
ees could elect to work 48 or 40 hours per week
2 See Herman Gabel, d/b/a Gabel Tank Company, 166 NLRB 902, 907
(1967), Tom Wood Pontiac, Inc , 179 NLRB 581 (1969)
3 My colleagues take issue with this statement , claiming that Respondent
did not begin reducing working hours until July 13 Respondent 's testimony
on this point is not free from doubt Liverett testified that "we did put into
effect on July the 6th a new wage schedule which was based on a 40-hour
workweek" and at another point he testified that he advised the Union "that
effective as of July the 6th that we would convert to a 40-hour workweek "
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Louisville, Kentucky, on January 20, 1976,
based on charges filed August 28, 1975, and a complaint
issued October 20, 1975, alleging violations of Section
8(a)(1), (3), and (5) of the Act. The General Counsel and
the Respondent have filed briefs.
Upon the entire record, including my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Respondent, a Delaware corporation, is engaged in pro-
viding investigative and security services to various busi-
nesses throughout the United States from many locations,
including one at Louisville, Kentucky, which is involved in
this proceeding. It annually performs services valued in ex-
cess of $50,000 from its Louisville location directly to es-
tablishments located outside the State of Kentucky. I find,
as Respondent admits, that it is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. Lo-
cal 71 of the International Guards Union of America is a
labor organization within the meaning of Section 2(5) of
the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The 8(a)(5) Allegations
The complaint alleges that Respondent violated Section
8(a)(5) by (1) unilaterally putting into effect certain
changes in the employees' wage rates and hours of employ-
ment , which changes, although those contained in a pro-
posal to the Union during bargaining negotiations, were
effected prior to impasse being reached; and (2) informing
the Union and the employees that it would not agree to a
contract without a clause shielding the employees who
worked during a lawful strike from union discipline.
At the outset of the hearing, I asked counsel for the Gen-
eral Counsel: "Well, in light of what you indicated to me
before the hearing opened would you want to withdraw
that portion of the complaint?" He responded, "Well, of
course we do now have a contract which has been signed
and executed ...," went on to state, "We concede that it's
perhaps remedied," and then added "Perhaps there would
be no remedy per se, but it's just that it did not take place
before we issued the complaint so we'd have to proceed on
it. I would be in no position to withdraw it. But, as I say,
you know, whether there would be any effective remedy
here or not. But I think we would have to proceed on that,
put in background as to the 8(3), also on that." At a later
point in the hearing, when the General Counsel was offer-
ing into evidence a document addressed to the employees
stating, in pertinent part, that the Company would not
agree to a contract without a clause providing that the
Union would not discipline employees who worked during
the strike, Respondent's counsel objected on grounds of
relevance. In receiving the document into evidence, I stat-
ed: "Well, as things stand officially it's got relevance to
paragraph 11(b),1 and we know we're really not concerned
with it in that sense but I'll receive it in evidence." (Empha-
sis supplied.)
In his brief to me, the General Counsel states : "As the
parties have executed a contract and, as conceded at the
hearing, any 8(a)(5) remedy would appear superfluous."
The brief goes on to state, correctly, that the 8(a)(5) allega-
tions were not withdrawn, and to ask that I find the 8(a)(5)
violations in both respects based on the record evidence.
Respondent's brief, on the other hand, states , "Although
not withdrawn at that time, the 8(a)(5) allegation was not
the subject of any direct testimony. Accordingly, the Re-
spondent does not believe an issue has been made on these
allegations and will not address them extensively herein."
In the light of the statements at the hearing, and the
parties' manifest understanding that the 8( a)(5) allegations
of the complaint were not really to be litigated, having
already been "remedied," it would be unfair to Respon-
dent at this juncture to find these violations. It is true that
the record discloses at least a prima facie case of a violation
both with respect to Respondent's unilaterally putting into
effect its proposal reducing the workweek and changing
hourly rates, and also with respect to its "insistence" upon
the clause shielding the employees who did not strike from
union discipline. But Respondent, obviously because of the
position expressed by the General Counsel, which although
not amounting to a withdrawal of those portions of the
complaint, was tantamount to a withdrawal of them for
practical purposes, presented no evidence with respect to
these allegations. As the position of the General Counsel
and my own statements at the hearing were legitimately
viewed by Respondent as removing these questions from
the case, and because in any event the General Counsel
stated that any remedy, assuming merit to the complaint's
allegations, would be "superfluous," it would in my opin-
ion be, as stated earlier, unfair to Respondent, and perhaps
even violative of due process, were a finding of an 8(a)(5)
violation to be made in these respects. I shall accordingly
dismiss these allegations of the complaint.
B. The 8(a)(3) and (1) Allegations
1. The facts
The complaint alleges that Respondent violated Section
8(a)(1) by threatening employee Thomas Dobbs that he
could be in trouble because of his union activities, and
Section 8(a)(3) by reducing Dobbs' work hours from 48 to
40 hours because of his union activities.
Dobbs has worked for Respondent for about 17 years,
the last 12 of which he worked at Fall City Brewing Com-
pany. He has been president of the Union for more than 3
years, and represented the Union in the contract negotia-
1 The complaint paragraph alleging this violation of Sec 8(a)(5)
PINKERTON'S, INC 841
tions between April 1975 and the signing of a contract be-
tween the Company and the Union in November 1975.
Beginning in April 1975, Respondent and the Union began
negotiating for a new contract to succeed a 3-year contract
expiring July 5, 1975. About six bargaining sessions were
held through July 4, on which the last, with a Federal med-
iator participating, was held at the Federal Mediation and
Conciliation Service offices. At this July 4 meeting, Dobbs
told the Company that "there would be a strike when the
contract expired the next day." 2 The Company had earlier
proposed a reduction in the workweek from 48 to 40 hours,
with an increase in the hourly rate, a proposal it main-
tained at the July 4 meeting, and which the Union contin-
ued to reject. A strike did ensue the next day, lasting less
than 24 hours.
The next actual negotiations between the Company and
the Union did not take place until July 28. In the mean-
time, on July 6, the Company put into effect its last propos-
al with respect to wages, and, on July 13, the Company
began implementing its proposal with respect to the re-
duced workweek. On July 28, when the parties met again,
the Company presented a new proposal to the Union, dif-
fering from the previous proposal in that it gave employees
working prior to the expiration date of the old contract an
option of continuing to work a 48-hour week, with a rela-
tively small hourly raise in pay, or working a 40-hour week
with a larger raise in their hourly rate.
According to Dobbs, Davis Liverett, manager of the
Company's Louisville office and the Company's negotiator
at the bargaining sessions, asked Dobbs if he would submit
the Company's new proposal to the membership of the
Union at an August 2 meeting, with Dobbs saying he could
not do so because the Union's constitution and bylaws re-
quired a 5-day notice for a special meeting and there was
not enough time to comply with that requirement. Accord-
ing to Liverett, it was the Federal mediator, Herb Fetty,
who requested Dobbs to submit the proposal to the mem-
bership, and Dobbs at that time, July 28, said he would do
SO. It is not important to resolve whether Dobbs or Liver-
ett was right, that is, whether or not Dobbs in fact had
agreed to have a special meeting, or whether or not the
initial request came from Liverett or from Fetty, for it is
clear that 3 days later, on July 31, Dobbs and Liverett were
each under the honest impression that the other had mis-
understood. At that time, Liverett came to Fall City, and
spoke with Dobbs at the latter's work station shortly before
noon. Liverett told Dobbs that both he and the mediator
had understood a meeting was to be held, that Dobbs had
so agreed at the July 28 session . Dobbs told Liverett that
he did not "recall making any such agreement, and that
there wasn't time anyway." According to Dobbs, Liverett
then said, "Well, you could be in trouble over this," Dobbs
responded, "I'm not concerned about it. I'm not worried
about it, about getting in trouble over it" Liverett, as the
2 The evidence concerning the bargaining both before and after July 4, as
well as the implementation after July 4 of the Company's proposal with
respect to wages and hours, is presented here because of its relation to the
General Counsel's 8(a)(I) and (3) allegations. It was in fact because of that
relationship, in my view, and not to show an 8(a)(5) violation, that this
evidence was presented
7 This is the only credibility question presented in the case
conversation was ending, said, "I hope you don't get into
trouble over this." Liverett confirmed the essence of this
conversation, testifying that the "could be in trouble" fol-
lowed immediately Liverett's calling to Dobb's attention
that Mediator Fetty, as well as Liverett, was under the im-
pression that Dobbs had agreed to hold a meeting and
submit the Company's proposal to the membership for a
vote. And Dobbs agreed, on cross-examination, that
Liverett's "could be in trouble" remark to him followed a
conversation in which Liverett told Dobbs that it was his
understanding and that of Fetty, that Dobbs had agreed to
have a membership meeting to vote on the company pro-
posal.
At the end of the workday the same day, July 31, Dobbs
received a call from his immediate supervisor, Mike John-
son, who informed Dobbs that thereafter he would be on a
40-hour week, and accordingly he was not to report to
work the next day, Friday. Dobbs continued to work a
40-hour week at the new rates until a new contract was
executed about November 14, 1975, when he exercised his
option under that agreement to return to a 48-hour week at
a somewhat lower rate. Dobbs was the only full-time guard
at the Fall City Brewery whose hours were reduced on July
31. The hours of the other 10 or I I guards were reduced on
September 28. Respondent had, beginning about July 13,
reduced the schedules of about one-third of its employees °
to 40 hours; it had also reduced the schedules of guards at
about nine other locations to 40 hours the same week it
changed Dobb's hours, and, by September 28, it had effect-
ed the reduction of all its employees to a 40-hour week.
2. Discussion
The words "You could be in trouble over this," followed
by "I hope you don't get into trouble over this," were not,
in my opinion, an unlawful threat by Liverett to Dobbs, in
the context in which they were said. In the first place, the
words themselves suggest "trouble" from some source
other than the Company, for Liverett's "hope" that Dobbs
would not get into trouble does not seem compatible with a
reading of the words as meaning that Liverett, the highest
company official at the Louisville location, was himself
going to effect the "trouble." Secondly, as Dobbs admitted,
the critical language alleged as a violation of Section
8(a)(1) came immediately after Liverett told Dobbs that it
was Mediator Fetty's understanding that Dobbs had
agreed to submit the Company's proposal to the member-
ship. A fairer reading, in my view, is that Liverett was real-
ly saying, "Fetty understood you were going to submit the
proposal to the membership, you are not doing so, and you
could get in trouble with Fetty because of this." Dobbs'
own testimony as to his response, that he said "I'm not
concerned about it. I'm not worried about it, about getting
in trouble over it," suggests to me that Dobbs' reading of
Liverett's words was also to the effect that the potential
"trouble" was with Fetty, not with Liverett.
The General Counsel argues that any doubts as to
whether or not Liverett was threatening Dobbs by the
aforementioned statement should be resolved in favor of
4About 120 out of about 360 employees
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding the threat, and the violation of Section 8(a)(1) in
the light of the Company's reducing Dobbs' hours later
that same day, asserting that this action constituted a car-
rying out of the threat made a few hours earlier. Although
this argument has a certain plausibility to it, it is, in my
view, somewhat circular. That is, if I correctly read
Liverett's statement standing alone as not constituting a
threat of reprisal by Liverett to Dobbs, much of the predi-
cate for concluding that the reduction of Dobbs' hours was
discriminatorily motivated disappears. Without the threat,
in other words, there would be no substantial basis for
concluding that there was any animosity by the Company
toward Dobbs, and the affirmative case against the Com-
pany would consist solely of the timing of the Company's
action, which occurred shortly after Dobbs had taken a
position adverse to the Company's desires, had reneged, in
Liverett's eyes, on his agreement to submit the proposal to
the membership.
Had the Company on the evening of July 31 taken ac-
tion against Dobbs of a more serious nature, had it sus-
pended or discharged him, for example, and offered no
plausible explanation for doing so, I would have no diffi-
culty in inferring that the reason therefor was Dobbs' fail-
ure to hold the membership meeting Liverett thought he
had promised to hold. Here, however, the reduction of
Dobbs hours was somewhat about the 125th reduction of
hours of the Company's 360 employees; it occurred in the
same week as the reduction in the hours of guards at 9
other company customers; it was followed in the next few
months by the reduction to 40 hours of all 360 guards in
the Company's employ; and it was all part of a plan put
into effect about July 13, before there was any reason at all
for the Company to resent Dobbs
It is true, and the General Counsel makes much of this,
that Dobbs was the only guard at Fall City Brewing Com-
pany whose hours were reduced on July 31; the rest of the
guards there had the reduction effected some 2 months
later. But the Company's explanation for this is plausible-
that Dobbs was the only guard at Fall City who did not
relieve another employee and was not himself relieved by
another employee, so that his situation was different from
that of the other 10 or so guards at that location. It had
already taken the Company almost 3 weeks to reschedule
one-third of its work force; it was to take another 2 months
before the other two-thirds was rescheduled; both facts
bearing out the Company's position that the implementa-
tion of the rescheduling plan being carried out by Liverett's
instructions to his staff was not an easy or automatic mat-
the timing of the action with respect to Dobbs was suspi-
cious, and that, although the Company's explanation of
why his hours could be changed more easily than the hours
of the other Falls City Brewery guards was plausible, there
is no real explanation advanced for picking that day to
change Dobbs' hours, rather than waiting until the same
change was implemented for the other guards there. It is
plain, however, that the change for Dobbs was the same
change in the process of being implemented for the entire
work force, that sooner or later it was going to occur for
him, as it was for everyone. Had Respondent really been
inclined to punish Dobbs for his failure to schedule a meet-
ing to take a membership vote on the Company's proposal,
it does not seem likely that such punishment would be no
more than doing to him what it was doing to everyone else.
At most, it might be argued that Liverett accelerated
Dobbs' reduction in hours out of exasperation with Dobbs.
But some 120 employees had already had their hours re-
duced, with no possible suggestion that those reductions
were discriminatonly motivated. In sum , the affirmative
case is thin, the nature of the "punishment" does not seem
to fit a discriminatory motivation, or to particularly suggest
that Dobbs was singled out because of his union activities,
in the light of 120 employees before and 240 employees
after, having been subject to the same treatment , and Re-
spondent's explanation for the action taken is sufficiently
plausible so as to refute any inference of unlawful motiva-
tion that might be drawn from the timing of the action with
respect to Dobbs and the fact that he alone of the approxi-
mately 11 guards at Fall City Brewery was affected at that
precise time. Having concluded that the evidence does not
otherwise suffice to establish that the treatment accorded
Dobbs was disciminatory, I must reject the General
Counsel's argument that this treatment demonstrates that
Liverett's earlier statement to Dobbs was a threat of retali-
ation by Respondent based on Dobbs' union activities.
For all the foregoing reasons, I shall recommend dis-
missal of the complaint herein.
CONCLUSION OF LAW
Respondent has not engaged in any conduct violative of
the Act.
Upon the foregoing findings of fact and conclusion of
law, I hereby issue the following recommended:
ORDERS
ter. Furthermore, I found Liverett to be a credible witness, The complaint is dismissed in its entirety.
and accept his testimony that he did not direct that Dobbs'
hours be reduced; the reduction was made by Liverett's
staff pursuant to the general instructions to them to con-
vert the entire guard complement to 40 hours as quickly as
possible.
I am not unmindful, as I indicated above, of the fact that
s 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