Professional Security And Guard Services, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1976

225 N.L.R.B. 982 (N.L.R.B. 1976)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Professional Security and Guard Services, Inc. and
Union Fraternal de Guardias de Seguridad de Puer-
to Rico. Case 24-CA-3663
August 18, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
Soto, and by laying off and discharging employee Moises
Luciano because of his union activity, and thereafter con-
ditioning Luciano's reinstatement upon his disclosure of
union adherents among the Company's employees, and by
refusing to reinstate Luciano because he declined to make
the requested disclosures. The Company filed an answer
denying the commission of any unfair labor practices. The
parties waived the filing of briefs.
Upon the entire record in this case and from my obser-
vation of the demeanor of the witnesses, I make the follow-
ing:
On June 3, 1976, Administrative Law Judge Leo-
nard M. Wagman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed an answer.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Professional Security
and Guard Services, Inc., Mayaguez, Puerto Rico, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. A
hearing in the entitled proceeding was held before me on
March 23, 1976, at Hato Rey, Puerto Rico, on the com-
plaint of the General Counsel against the Respondent, Pro-
fessional Security and Guard Services, Inc., referred to
hereinafter as the Company. The Acting Regional Director
for Region 24 issued the complaint in this proceeding on
February 19, 1976, upon a charge, and an amended charge,
filed by the Union Fraternal de Guardias de Seguridad de
Puerto Rico, referred to herein as the Union. The com-
plaint alleged that the Company violated Section 8(a)(1) of
the National Labor Relations Act, as amended (29 U.S.C.
151, et seq.), referred to herein as the Act, by interrogating
an employee regarding said employee's and other employ-
ees' union activity, membership, and sentiment. The com-
plaint further alleged that the Company violated Section
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION
The Company, a Puerto Rico corporation engaged in
providing security guard services, has its principal office
and place of business at San Juan, Puerto Rico, and two
branch offices at Mayaguez and Ponce, Puerto Rico. In the
course and conduct of its business, the Company annually
derives gross revenues exceeding $500,000. The Company
also annually purchases and causes to be transported and
delivered to its places of business goods and materials in
excess of $4,000, of which goods and materials in excess of
$4,000 are transported and delivered to its place of busi-
ness from other enterprises in Puerto Rico, each of which
has received those goods and materials directly from States
of the United States. I find, and the Company admits, that
at all times material herein the Company was an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The Company admits, and I find, that the Union Frater-
nal de Guardias de Seguridad de Puerto Rico, is, and at all
times material herein has been, a labor organization within
the meaning of Section 2(5) of the Act
11 THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The union campaign
I find from employee Moises Luciano's uncontradicted
testimony that the Union began a campaign to organize
the Company guard employees in September or October
1975.1 The Company concedes, and I find, that on Novem-
ber 12 the Union petitioned for certification as bargaining
representative of a unit of the Company's guard employees
in Case 24-RC-5693. However, the record does not dis-
close either the date on which a copy of the petition was
mailed to the Company or when the Company received
notice of the petition. The Company also concedes, and I
find, that on December 8 the Board conducted an election
among these employees. The record does not disclose the
results of that election.
8(a)(3) and (1) of the Act by discharging employee Luis F. 1 All dates hereafter refer to 1975
225 NLRB No. 147
PROFESSIONAL SECURITY AND GUARD SERVICES 983
2. Moises Luciano 2
The Company hired Moises Luciano towards the end of
March as a security guard and employed him in that ca-
pacity at the Star Kist pier in Mayaguez until November 2.
At the time the Company hired Luciano, a company super-
visor , Efrain Quiles , who was secretary and assistant to the
Company's Mayaguez area manager, Florencio Lugo, di-
rected Luciano to sign five or six documents. The top doc-
ument declared Luciano's responsibility for the guard's
uniform and badge which the Company issued to him.
Quiles held the remaining documents underneath this dec-
laration , and rolled them back from the bottom to permit
Luciano to sign them without seeing their contents. Thus,
Luciano read only the top document regarding his respon-
sibility for safekeeping the uniform and badge. Quiles as-
sured him that the remaining pieces of papers were copies
of the top document. However, unbeknown to Luciano the
small pile of documents included a resignation typed in
Spanish which incorporated a statement which when trans-
lated read:
I understand that submitting my resignation has been
a decision on my part, without my having been
pressed or advised by any official of this company to
make this decision.3
Luciano actively assisted the Union. Thus, in September
or October, Herbert Ocasio a steward for the Union at
another company in Mayaguez , gave Luciano some union
authorization cards Luciano solicited and obtained the
signatures of fellow company guard employees on the
union cards which he then returned to the Union. Thereaf-
ter, Luciano came to the Board's office when the Union
presented them in support of the November 12 petition.
Finally, on December 8, Luciano acted as the Union's ob-
server at the Board-held election among the Company's
guard employees.
On November 2, Area Manager Lugo laid Luciano off
with the explanation that there was a lack of work. There-
after, on November 15, Luciano received a letter dated
November 13 from the Company, addressed to him, which
when translated from its Spanish read as follows.
We have accepted your resignation as a security guard
with this corporation and we wish you the best success
in your future employment.
The letter was signed "Florencio Lugo, Manager Maya-
guez, P.R Area."
Upon receiving the Company's letter, Luciano sought
out and consulted with Union Steward Ocasio. Immedi-
ately, that same afternoon Luciano and Ocasio went to
2 My findings of fact regarding the alleged discrimination against Luciano
are based upon his credi ted testimony which, except as noted in footnote
below , was contradicted
7
Area Manager Lugo testified to the effect that Luciano executed the
resignation letter in Lugo 's presence on or about November 13 However,
Lugo came to the witness stand with notes written on his hand , and thereaf-
ter impressed me as being an evasive and reluctant witness I have therefore
rejected his testimony whenever it conflicted with the testimony of Luciano
who impressed me as being a more candid witness
Manager Lugo 's office, where Luciano questioned the con-
tents of the letter , which he held as he spoke. Ocasio re-
mained at the door to Lugo's office. Luciano asked why
Lugo had sent the letter asserting that he, Luciano, had
resigned when in fact he had not done so. Lugo replied that
work was available for Luciano, but that he, Lugo, "had a
problem" which Luciano must help him solve. Luciano
agreed to help as much as he could. At this, Lugo asked
Luciano to "turn over the list of guards who had signed the
union cards," and again remarked that he would provide
work for Luciano. When Luciano refused to furnish the
requested list, Lugo said the conversation was over and
that Luciano was "to guide [himself] by the letter [Luciano]
had in his hand." Since November 15, the Company has
not reinstated Luciano.
3. Luis F. Soto 4
The Company hired Luis F. Soto as a security guard on
January 18. The Company terminated him on November 3.
At the time the Company hired Soto, Manager Lugo's as-
sistant, Quiles, directed Soto to sign a sheath of six papers,
which included a resignation statement exactly similar to
that signed by Luciano. In obtaining Soto's signature,
Quiles employed the same procedure as described in my
findings of fact regarding Luciano. Thus, Soto was un-
aware that he had signed the resignation statement until
confronted with the document at the instant hearing.
Under Lugo 's supervision , Soto worked as a guard at
various locations until May. Thereafter, until his discharge,
the Company stationed Soto at one location . During the
first week of October , Soto received six union cards for
solicitation of employee signatures Soto gave each of the
cards to a company guard. At the same time, Soto distrib-
uted a union leaflet to fellow guards at his place of employ-
ment.
On Sunday, November 2, Assistant Quiles came to
Soto's home and requested him to work at the Star Kist
gate from 1 p.m. until 9 p in. that same day. Although
Sunday was normally a day off for Soto, he went to the
Star Kist gate where he worked until 9:15 p.m that eve-
ning. At that point, he phoned Manager Lugo to report
that the relief guard had not appeared, and that he, Soto
"was not feeling very well." Lugo instructed Soto to remain
at his post a short while longer in the hope that the relief
guard would arrive shortly.
The relief guard did not appear. At about 10.05 p.m.,
Soto telephoned Lugo and reported the situation. Lugo
told Soto to station Mr. Segundo Perez, a roving guard, on
his post and take a lunchbreak. Soto followed Lugo's in-
structions . Upon returning from lunch at about 10 . 50 p.m.,
Soto found that another guard had replaced Segundo Per-
ez. The relief guard told Soto to report to Lugo's office on
the following day.
On the morning of November 3, Soto reported to Lugo's
office, where he met Lugo and Quiles. Quiles told Soto he
was discharged because he had abandoned his post. There-
after, on March 15, for the first time , while at the Board's
Regional Office in Hato Rey, Puerto Rico, Soto saw his
4 My findings of fact regarding the alleged discrimination against Soto are
based upon his uncontradicted testimony
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signature on a resignation statement, dated November 5,
which bore the same language as that which I have de-
scribed in connection with the alleged discrimination
against Moises Luciano.
B. Analysis and Conclusions
1. Moises Luciano
The General Counsel contends that the record shows the
Company laid off Moises Luciano on November 2 because
of his union activity, and thereafter discharged him on No-
vember 13 for the same reason The Company denies these
allegations and argues that Luciano resigned. Initially, I
find that the written resignation upon which the Company
bases its contention was obtained under conditions which
rendered it nugatory. I also find that Luciano did not
otherwise evidence an intent to resign from the Company's
employ. Having already found that the Company laid Lu-
ciano off on November 2, I now find that the Company's
November 13 letter to him amounted to a discharge. The
remaining questions go to the Company's motive for laying
off and then discharging Luciano.
I find no evidence to show that the Company suspected
or became aware of Luciano's union activity prior to No-
vember 15. There has been no showing that the timing of
either the November 2 layoff or the November 13 dis-
charge is connected with Luciano's union solicitations. Nor
can I find a coincidence in time between the November 13
letter and the Company's receipt of information regarding
the Union's petition. Luciano's credited testimony shows
only that he conducted his solicitation on behalf of the
Union at some time in September and October. Further,
there has been no showing that either Lugo or Quiles ques-
tioned Luciano about the Union's election campaign
among the Company's employees prior to November 15.
Finally, there has been no suggestion that any company
supervisor observed or could have observed Luciano's
union activity, or that Luciano conducted his solicitation
in such circumstances that the Company was likely to learn
of it prior to November 15. Thus, the General Counsel has
failed to supply an element essential to showing that an
unlawful motive precipitated Luciano's November 2 layoff
and his November 13 discharge. Accordingly, I shall rec-
ommend dismissal of those portions of the complaint
which alleged that the layoff and discharge were violative
of Section 8(a)(3) and (1) of the Act.
In contrast, the General Counsel's further allegations
that the Company violated Section 8(a)(1) and (3) of the
Act by its conduct toward Luciano on November 15 are
amply supported by the record evidence. Thus, as I have
found, Area Manager Lugo asked Luciano to disclose the
names of those of his fellow employees who had signed
union cards and offered to reward Luciano with reinstate-
ment. When Luciano refused, Lugo withdrew the proffered
employment. By pressing Luciano for the names of union
supporters, Lugo provided convincing evidence of the
Company's certainty or strong suspicion that Luciano was
a union supporter. Further, I find that Lugo's attempt to
extract information from Luciano regarding the identity of
other union supporters coerced Luciano in the exercise of
his statutory right to support the Union and thereby violat-
ed Section 8(a)(1) of the Act. The incident also reveals the
Company's union animus. For, when Luciano refused to
supply the requested information, Lugo revoked his job
offer. In sum, the General Counsel presented convincing
evidence to support the allegation that the Company re-
fused to reinstate Luciano because he refused to disclose
which of his fellow employees were union adherents.
The Company has wholly failed to provide lawful excuse
for its failure to reinstate Luciano. Indeed, the Company
offered no evidence which would cast doubt upon the in-
ference of unlawful motive flowing from the General
Counsel's case. Therefore, I find that by denying Luciano
reinstatement in the circumstances recited above, the Com-
pany violated Section 8(a)(3) and (1) of the Act.
2. Luis Soto
The General Counsel urges that Soto's discharge on No-
vember 3 was in reprisal for his union activity. The Com-
pany seeks to escape a finding of unlawful discharge by
pointing to Soto's signature on a resignation statement dat-
ed November 5. As in the case of Luciano, I find that
circumstances surrounding the placement of Soto's signa-
ture on the resignation form deprive it of any value as
evidence that Soto intended to resign from the Company's
employ. In any event, I have found that the Company dis-
charged Soto on November 3, 2 days before the effective
date of Soto's purported resignation. The remaining ques-
tion is why did the Company discharge Soto.
My suspicion is aroused by the apparent pretext-i.e.,
abandoning his post on November 2, which the Company
used to justify the discharge of Soto, a union activist, and
the Company's apparent willingness to engage in unlawful
conduct to combat the Union when it refused reinstate-
ment to Luciano 12 days later
However, the record will not sustain the inference that
the Company was motivated by knowledge or suspicion of
Soto's union activity or prounion sentiment. There has
been no showing that the Company questioned Soto as to
his role in, or sentiment toward, the Union's campaign.
There is no evidence that any member of company man-
agement observed Soto soliciting signatures on union
cards, or handing out union propaganda. Nor do the cir-
cumstances, as set out in the facts, warrant a finding that
the Company was likely to know or suspect that Soto sup-
ported the Union. Finally, I note that Soto's union activity
occurred I month prior to his discharge. Such a time gap
suggests that there was no connection between Soto's
union activity and the Company's decision to discharge
him. In sum, I find that counsel for the General Counsel
has failed to sustain her burden of showing by a prepon-
derance of the evidence that Soto was discharged for union
reasons. Accordingly, I shall recommend dismissal of the
allegations that Soto's discharge was violative of Section
8(a)(3) and (1) of the Act.
Upon the foregoing findings of fact and the entire re-
cord, I make the following.
PROFESSIONAL SECURITY AND GUARD SERVICES 985
CONCLUSIONS OF LAW
1. Professional Security and Guard Services, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Union Fraternal de Guardias de Seguridad de Puerto
Rico is a labor organization within the meaning of Section
2(5) of the Act.
3. By unlawfully interfering with, restraining, and coerc-
ing employees as found herein, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By refusing to reinstate employee Moises Luciano,
Respondent has engaged in unfair labor practices within
the meaning of 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 Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
The recommended Order will contain the conventional
provisions in cases involving findings of interference, re-
straint, coercion, and unlawful discharges, in violation of
Section 8(a)(1) and (3) of the Act. This will require the
Company to cease and desist from the unfair labor practic-
es found, to offer reinstatement with backpay to Moises
Luciano, and to post a notice to that effect. In accordance
with the usual requirements, reinstatement shall be to the
employee's former position or substantially equivalent po-
sition, without prejudice to his seniority and other rights
and privileges. The discriminatee, Moises Luciano, shall be
made whole for any loss of earnings he may have suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to that which he normally
would have earned from the date of the initial discrimina-
tion to the date he is offered reinstatement by the Compa-
ny, less net earnings, if any, during such period, to be com-
puted in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat-
ing Co, 138 NLRB 716 (1962).
The unfair labor practices committed by Respondent
strike at the very heart of employees' rights safeguarded by
the Act. I shall therefore place Respondent under a broad
order to cease and desist from in any other manner infring-
ing upon the rights of employees guaranteed in Section 7 of
the Act. N.L.R.B. v. Entwistle Manufacturing Company, 120
F.2d 523, 536 (C.A. 4, 1941).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
The Respondent, Professional Security and Guard Serv-
ices, Inc., Mayaguez, Puerto Rico, its officers, agents, suc-
cessors, and assigns, shall:
1 Cease and desist from:
(a) Discouraging membership in, support for, or activi-
ties on behalf of Union Fraternal de Guardias de Seguri-
dad de Puerto Rico, or any other labor organization, by
discriminating in any manner against any of its employees
in regard to their hire and tenure of employment, or any
term or condition of employment, because of their union
membership, sympathies, or activities
(b) Questioning employees about their and other em-
ployees' membership in, activities on behalf of, and sympa-
thies in and for Union Fraternal de Guardias de Seguridad
de Puerto Rico, or any other labor organization.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form, join, or assist labor organizations,
including Union Fraternal de Guardias de Seguridad de
Puerto Rico, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activi-
ties for the purposes of collective bargaining or other mutu-
al aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Offer Moises Luciano immediate and full reinstate-
ment to his formerjob or, if his position no longer exists, to
a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him
whole for such loss of pay as he may have suffered as a
result of the Respondent's discrimination against him, in
the manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports and all other records neces-
sary or useful to an analysis of the amounts of backpay due
under the terms of this Order.
(c) Post at its guard posts and office in Mayaguez, Puer-
to Rico, English and Spanish copies of the attached notice
marked "Appendix." 6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 24, after being
duly signed by an authorized representative of the Compa-
ny, shall be posted immediately upon receipt thereof and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. The Company shall take
reasonable steps to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 24, in writ-
ing within 20 days from the date of this Order, what steps
have been taken to comply herewith.
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
6In 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"
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS ALSO ORDERED that the complaint be dismissed inso-
far as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the chance to give
evidence , the National Labor Relations Board found that
we violated the National Labor Relations Act, and ordered
us to post this notice and to keep our word what we say in
this notice.
The law gives you the right:
To form, join , or help unions
To choose a union to represent you in bargaining
with us
To act together for your common interest or pro-
tection
To refuse to participate in any or all of these
things.
The Board has ordered us to promise you that:
WE WILL NOT interrogate you regarding your and
other employees ' membership in, activities on behalf
of, and sympathy for Union Fraternal de Guardias de
Seguridad de Puerto Rico , or any other labor organi-
zation.
WE WILL NOT interfere with your rights.
The Board found that we violated the law because we re-
fused to reinstate Moises Luciano because he supported
the Union Fraternal de Guardias de Seguridad de Puerto
Rico.
Accordingly, WE WILL offer Moises Luciano rein-
statement to his former job or to a job substantially
equivalent , without prejudice to his seniority or other
rights and privileges , and WE WILL make him whole,
with interest at the rate of 6 percent per annum, for
any loss of pay he may have suffered because we dis-
charged him.
PROFESSIONAL SECURITY AND GUARD SERVICES, INC.