Swanson Group

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 184 (N.L.R.B. 1993)

184
312 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We adopt the judge’s findings that the Respondent unlawfully
discharged employees Margaret Siegrist, Thomas Quallet, and Mi-
chael Marko because of their union activities. We note that the Re-
spondent’s answer admitted that Essie Swanson and James Koester
were statutory agents and supervisors. Accordingly, we impute their
knowledge of the discriminatees’ union activities to John Swanson.
We agree with the judge that the Respondent did hire Siegrist,
Quallet, and Marko. We find it unnecessary, however, to rely on the
judge’s statement at fn. 12 of his decision that had the Respondent
realized immediately the meaning of the ‘‘troublemakers’’ remark, it
would not have hired them.
1 All dates refer to the year 1991 unless otherwise indicated.
2 The relevant docket entries are as follows: The charge in Case
4–CA–20258 was filed by the Union on November 18, and the
charge in Case 4–CA–20268 was filed by Margaret Siegrist on No-
vember 21. The complaint issued on March 25, 1992, and was
amended at the hearing, which was held in Philadelphia, Pennsyl-
vania, on August 3–4, 1992.
The Swanson Group, Inc. and International Union,
United Plant Guard Workers of America
(UPGWA) and its Local 506
Margaret Siegrist and The Brotherhood of Armed
and Unarmed Security Guards, Party to the
Contract. Cases 4–CA–20258 and 4–CA–20268
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 12, 1993, Administrative Law Judge
Benjamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Swanson Group, Inc.,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order.
Henry R. Protas, Esq., for the General Counsel.
Steven R. Semler, Esq. (Semler & Pritzker), of Washington,
D.C., for the Respondent.
Lisa S. Lane, Esq. (Gregory, Moore, Jeakle, Heinen, Ellison,
& Brooks), of Detroit, Michigan, for the Charging Parties.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BENJAMIN SCHLESINGER, Administrative Law Judge. On
November 1, 1991,1 Respondent The Swanson Group, Inc.
began to provide security in Philadelphia, Pennsylvania, at
the Naval Aviation Supply Office (ASO), which contracts for
aircraft spare parts for the Navy and Marine Corps. The day
before, the same security operations were performed by Se-
lective (also known as Select or Selected) Investigation Serv-
ices (SIS). The unfair labor practice complaint alleges that
Respondent was SIS’s successor and that it refused to bar-
gain with International Union, United Plant Guard Workers
of America (UPGWA) and its Local 506 (Local 506;
UPGWA and Local 506 collectively the Union), the labor or-
ganization that had a collective-bargaining agreement with
SIS. Instead, it quickly signed an agreement with another
union, The Brotherhood of Armed and Unarmed Security
Guards (Brotherhood), and terminated the employment of
three of its employees because of their union activities. Re-
spondent denies that it violated the National Labor Relations
Act, 29 U.S.C. § 151 et seq., in any respect.2
Respondent admits that it is subject to the jurisdiction of
the Board. It is a corporation with an office and principal
place of business in Annandale, Virginia, where it has been
engaged in providing security services at four facilities in the
United States, including ASO. During 1991 it provided serv-
ices in excess of $50,000 to customers located outside Vir-
ginia. I conclude that Respondent is an employer within the
meaning of Section 2(2), (6), and (7) of the Act. I also con-
clude that the UPGWA, Local 506, and the Brotherhood are
labor organizations within the meaning of Section 2(5) of the
Act.
The security work at ASO has been performed by civilians
and was contracted out by the Navy. The contractor before
SIS was Old Dominion Security, Inc., which had signed a
collective-bargaining agreement with the Union covering the
following unit which was appropriate for bargaining within
the meaning of Section 9(b) of the Act:
INCLUDED: All full-time and regular part-time se-
curity officers, including security sergeants employed
by Old Dominion Security, Inc. at the Navy Aviation
Supply Office located at 700 Robbins Avenue, Philadel-
phia, Pennsylvania.
EXCLUDED: All other employees, lieutenants, pro-
fessional employees, office clerical employees, and su-
pervisors as defined in the Act.
SIS succeeded to this contract, which expired by its terms
on October 31, 1992. Before SIS’s contract with the Navy
reached its termination date, Respondent bid for the work
and was awarded the contract. The Navy notified it of SIS’s
collective-bargaining agreement with the Union. Respondent
hired almost all of SIS’s employees and, beginning on No-
vember 1, supplied security services at ASO, in the very
same manner as SIS did. On that date, Respondent employed
29 persons, only 3 of whom had not previously been em-
ployed by SIS. Even with the addition of six new employees
by November 5, the vast majority of its employees had been
employed by SIS. That meets the first of the two tests for
185SWANSON GROUP
3 Essie Swanson’s name is misspelled in the official transcript as
‘‘S.E.’’ and ‘‘Elise.’’ The transcript is amended.
4 Soon thereafter, Respondent changed its fax number or discon-
nected its machine.
successorship, as found by the Supreme Court in Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), citing, inter alia,
NLRB v. Burns Security Services, 406 U.S. 272, 280–281 fn.
4 (1972); Capitol Steel Co., 299 NLRB 484, 486 (1990). The
second test is whether the similarities between the two oper-
ations manifest a ‘‘’substantial continuity’ between the enter-
prises.’’ Ibid. Thus, the question is ‘‘whether ‘those employ-
ees who have been retained will . . . view their jobs as es-
sentially unaltered.’’’ Fall River at 43, quoting Golden State
Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973). On Novem-
ber 1, Respondent provided the same services as were pro-
vided by SIS the day before. There was not only a ‘‘substan-
tial continuity’’ but almost a complete continuity of oper-
ations, under the criteria set forth in Border Steel Rolling
Mills, 204 NLRB 814 (1973). Respondent admitted that the
following unit is appropriate for bargaining:
All full time and regular part time security officers
employed by The Swanson Group, Inc. at the Naval
Aviation Supply Office located in Philadelphia, Penn-
sylvania, excluding all other employees, managerial and
administrative employees and supervisors as defined in
the Act.
Accordingly, Respondent had a duty to recognize and bar-
gain with the Union about those employees’ terms and condi-
tions of employment. Burns, supra at 278–279.
There is ample proof that the Union attempted to contact
Respondent in an effort to request it to bargain. On Novem-
ber 1, Dennis Eck, president of Local 506 and an Inter-
national representative, telephoned the jobsite and spoke to
Essie Swanson,3 Respondent’s vice president and sister of
Respondent’s president, John Swanson, III. Eck told her that
he wanted to negotiate a contract, but she said that her broth-
er was in charge of those business dealings. She gave him
an address in Springfield, Virginia, but refused to give him
an office telephone number. Within the next day or so, Eck
received John’s telephone number from Michael Nolan,
ASO’s director of security; but, when Eck tried that number,
the call was answered that the number had been disconnected
or changed. He then started to telephone Essie daily, on No-
vember 3–6. He repeatedly asked to speak with someone
who had the authority to negotiate a collective-bargaining
agreement. Once, on November 5, in reply to Eck’s request
that Respondent bargain with the Union, Essie told him that
John was going to be at meetings the next several days and
hung up. Eck also began to write letters. Most of his letters,
which were dated November 3, 8, 15, and 25, December 6
and 16, 1991, and May 6 and 20, 1992, sent by certified
mail, were either rejected or not picked up at the post office.
The sole exception was the delivery of the November 3 let-
ter, which was also mailed to James Koester, Respondent’s
project manager and an admitted supervisor, at ASO’s ad-
dress. Koester did not deny the receipt of that letter, which
is evidenced by a signed return receipt for certified mail,
dated November 6. None of Eck’s letters received any re-
sponse.
That there was no response from the Union can be attrib-
uted to several peculiar rules by which, John testified, he
conducted his business. The first was that the telephone num-
ber of his office would not be made available. Another was
that he would not accept any mail at one of the military fa-
cilities where he provided security. Another was that he
would not accept certified and registered mail at his Virginia
office, because he worked late hours and he could not afford
the time to go to the post office to pick up his mail. It is
for these reasons that Respondent and, in particular, John,
sought to persuade me that the Union’s demands were never
delivered. It was only on November 9 that one of the
Union’s requests, a copy of its November 8 letter, was deliv-
ered, this time only because the Union had learned of Re-
spondent’s fax number.4 The Union’s demand was a typical
demand for recognition and contained nothing that should
have execited anyone, but John’s response, received by the
Union on November 12, was somewhat excited:
[A]s a former Union Shop Steward, I noticed that the
tone of your correspondence carries a demanding and
threatening tone. Surely, this is not the way that your
organization conducts business. Secondly, in dealing
with this firm, we insist that collective bargaining
agents refrain from contacting our clients if a good
working relationship is to be developed. Otherwise, in
like manner we will respond to such demeanor.
Obviously, John’s reply demonstrates that he received the
Union’s demand of November 8. In addition, Eck made
proper demands of Essie, a corporate officer and supervisor,
on November 1 and 5; and Eck’s November 3 was received
by Koester. Finally, the mailing of all the Union’s demands
constituted proper service. Respondent cannot avoid its re-
sponsibilities merely because it rejects delivery of or refused
to pick up its mail. I conclude that the Union demanded rec-
ognition and bargaining and that Respondent refused to bar-
gain, in violation of Section 8(a)(5) of the Act.
In so concluding, I reject Respondent’s defense that it had
no obligation to bargain with the Union because: ‘‘Under the
Service Contract Act, which applies to [the Union’s collec-
tive-bargaining agreement], 41 U.S.C. § 354 (a), any em-
ployer which violates any of the Act’s employee payment re-
quirements is to be debarred from receiving further govern-
ment contracts, absent the existence of unusual circumstances
found by the Secretary of Labor.’’ Respondent’s claim is that
a number of the provisions of the Union’s agreement violate
that Act. However, the agreement was filed with the Depart-
ment of Labor, and I assume that it was examined and ap-
proved. But, assuming that Respondent’s claim is accurate,
the Service Contract Act provides the remedy—the debar-
ment of the employer from receiving further government
contracts. The original contract was signed by SIS, which
may have insisted on the allegedly illegal clauses. Respond-
ent shows no reason that the Union should be disqualified
from representing the employees. The old contract is not
binding on Respondent as the successor employer. Respond-
ent’s only obligation is to recognize and bargain with the
Union. It does not have to assume the contract. If Respond-
ent believes that the clauses are illegal, it can negotiate a
new agreement. In its bargaining, it may opt to insert provi-
sions in the agreement that comply with the Service Contract
Act and delete those provisions that it believes violate the
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 How Syminsky obtained John’s telephone number, in light of
Eck’s experience, was not explained.
6 Respondent’s attorney represented that he knew nothing of any
‘‘National Recognition agreement.’’
statute. Finally, all the decisions cited by Respondent for re-
fusing a union’s status as a collective-bargaining representa-
tive deal with the union’s own misfeasance, such as discrimi-
nating against its own members because of race or abject in-
difference to protecting its members’ interests. They do not
deal with, as here, a bilateral agreement in which a clause
or two may have violated a statute.
John’s reply to the Union, quoted above, is also strange,
because he appears to be disturbed at the prospect of the
Union’s representation of his employees. He describes the
Union as a ‘‘collective bargaining agent’’ and warns about
its conduct to ensure the development of ‘‘a good working
relationship.’’ But, according to Respondent’s documentary
evidence and John’s testimony, he had already signed a col-
lective-bargaining agreement with the Brotherhood, which
leads to the second part of the complaint. His story was that
one John Syminsky, the president of the Brotherhood, tele-
phoned him5 about November 4 or 5 and stated that under
his union’s agreement at Respondent’s work location in Colts
Neck, New Jersey, he had a ‘‘selective National Recognition
agreement’’6 and, under it, he chose to have Respondent rec-
ognize it at ASO. John said that he had ‘‘no problem’’ with
that, and bargaining immediately ensued. How did this come
about? By telephone. Syminsky, who did not testify, pre-
sented a lengthy list of demands, seemingly memorized by
John, about all the things that Syminsky found unsatisfactory
in the Union’s contract with SIS. (How Syminsky learned of
the contents of the Union’s agreement was not explained.)
They talked for 2 hours that day, and again the next day, for
about a half hour, which culminated in an agreement. John
conveniently offered to prepare the final agreement, because
he had prepared the Colts Neck agreement on his computer;
and he could use that computer file to write the new agree-
ment, the terms of which were effective on November 1. He
represented that the new agreement at ASO differed from the
Colts Neck agreement, which Respondent did not produce,
only in a few respects, one being the amount of the wages
and the other being the location at which the agreement was
to be effective. In any event, on November 7, before the new
agreement was signed, John wrote to the ASO, advising that:
In light of the fact that this firm has a Selective Na-
tional Agreement with The Brotherhood of Armed and
Unarmed Guards, and the previous Collective Bargain-
ing Agent did not seek recognition, this office has rec-
ognized THE BROTHERHOOD OF ARMED AND
UNARMED GUARDS as the Sole collective bargain-
ing agent for the employees of this firm providing serv-
ices under the referenced contract on November 1,
1991.
The Brotherhood must supply us with authorization
cards signed by a majority of the employees to confirm
their request for recognition. We will also request an
independent polling from the National Labor Relations
Board. However, these actions will have no impact on
the negotiated Collective Bargaining Agreement at-
tached.
This letter is based on a lie, which is John’s statement that
the Union had not sought recognition. The Union had; and,
although John had created as many obstacles as he could, he
did not prevent Eck from talking to Essie and did not prevent
Eck’s letter from being received by Koester on November 6.
Essie testified that on November 5, she called John and told
him that Eck was trying to contact him and what he wanted.
She must have told him of the first call, too. She testified
that she ‘‘check[ed] in every night to give him an update of
everything that happen[ed].’’ Koester, seemingly the ‘‘train-
ee’’ lackey, would also have immediately advised his boss
that the Union was asserting its rights. Thus, having watched
John, I find that he was aware, contrary to his letter to the
ASO, that the Union had asked for negotiations. I also find
that his testimony was completely fabricated. What really
happened was that John commenced a plan to ensure that the
Union, a more active labor organization than he may have
been used to dealing with, would not represent his employ-
ees. The way to do that was to sign an agreement with an-
other labor organization and interpose that other agreement
to block the Union’s attempt to represent Respondent’s em-
ployees. The Brotherhood was the ideal vehicle. Koester was
its former president and, even when he left, the organization
‘‘was kind of falling apart.’’ So, John revived it. He prepared
the agreement for the Brotherhood to sign, and he wrote its
terms. (It should be recalled that Syminsky, an employee at
Colts Neck, could have been called by Respondent to cor-
roborate John’s testimony, but he was not. Furthermore, the
Colts Neck agreement was never produced, nor was the
‘‘National Recognition agreement,’’ nor were John’s notes of
his ‘‘negotiations.’’) Then someone had to sign the new col-
lective-bargaining agreement.
So, one day, according to Richard Bowen, an employee at
Colts Neck, Syminsky asked Bowen to accompany him to
Philadelphia. They arrived at the hotel where Essie main-
tained her office, and she asked them to sign the contract.
They did, Syminsky, as acting president, and Bowen, as act-
ing vice president, despite the fact that they had never been
elected to office. Rather, they seem to have been self-ap-
pointed and self-designated. Bowen had never seen the con-
tract before. Later, Essie asked them to go to the ASO to ex-
plain the contract to the employees. Koester introduced them
to some of the employees—Bowen had never met any of the
employees—who were not interested in the new agreement.
They wanted the Union, not the Brotherhood, to represent
them; and they said that Bowen and Syminsky should not be
there. Even Essie conceded that the employees reacted bellig-
erently to the idea that they were being represented by the
Brotherhood.
I conclude that the entire agreement is a fraud, and John’s
attempt to support its integrity is so outrageously unbeliev-
able that it reflects on all the rest of his testimony. He sim-
ply cannot be trusted, and I do not believe him at all. Even
if I believed a bit of what he testified to, there is no manner
in which John’s entry of the agreement can be legally justi-
fied. There is no accretion (the facilities are 50 miles apart).
There is no showing that the employees wanted the Brother-
hood to represent them. The agreement was, pure and simple,
a concoction of a conniving employer, that knew that the
Union was knocking at the door and attempted to enlist the
aid of a phony and dormant organization that represented no
one at the ASO.
187SWANSON GROUP
7 Respondent’s attack on Siegrist’s credibility has no merit. For ex-
ample, Respondent questions her misstatement of the date that she
became the union steward. However, she did not misstate anything.
It is obvious that she was stating two dates, one when she became
the steward of those who were employed by SIS, and the other when
she was elected by those who were soon to become employed by
Respondent.
8 I am, however, making no presumptions based on Respondent’s
failure to comply with certain provisions of the General Counsel’s
subpoena. I gave Respondent the benefit of the doubt that it did not
fully understand what the General Counsel was seeking by affording
it the opportunity to bring certain documents to the hearing on Au-
gust 5, 1992. The General Counsel elected to close the hearing on
August 4 rather than permit Respondent to produce the subpoenaed
documents.
9 John claimed that on October 31 he brought to Philadelphia a list
of the employees whom he had hired. If Siegrist were not on that
list, as John contended, Respondent would not have been telephon-
ing her. This is just another indication that John was not telling the
truth.
10 One of the lists prepared by Respondent shows that these em-
ployees were ‘‘let go,’’ indicating that they were hired, as opposed
to those who were not ‘‘picked up,’’ or, in other words, never hired.
Because Respondent was SIS’s successor and had a duty
to bargain with the Union, it violated Section 8(a)(2) of the
Act by recognizing and executing a collective-bargaining
agreement with the Brotherhood. American Pacific Concrete
Pipe Co., 262 NLRB 1223, 1226 (1982), enfd. mem. 709
F.2d 1514 (9th Cir. 1983). Furthermore, it is evident that the
Brotherhood had no employee support at ASO. John’s letter
to the ASO acknowledges, and the other proof demonstrates
beyond any doubt, that the agreement was written by John
before there was any support for the Brotherhood, no less
than the required majority that Board law requires. Ladies’
Garment Workers v. NLRB, 366 U.S. 731, 738 (1961). Fi-
nally, the agreement contains a union-security provision. The
execution of such an agreement with a union that represents
no employees, no less a majority, violates Section 8(a)(3). I
so conclude. Famous Castings Corp., 301 NLRB 404, 408
(1991). It makes no difference, as Respondent contends, that
the clause was never enforced. Its mere execution and main-
tenance violate the Act. Hudson River Aggregates, 246
NLRB 192 fn. 5 (1979), enfd. 639 F.2d 865 (2d Cir. 1981).
The speed at which John felt it was necessary to sign the
agreement lends support for the General Counsel’s theory
that Respondent discharged three employees, Margaret
Siegrist, Thomas Quallet, and Michael Marko, because of
their union activities. I find that John wanted no part of a
labor organization that would not do his bidding, and em-
ployees who would not blindly follow his labor policies were
equally threatening to him. In making this finding, I also find
that Essie and Koester have no regard for the truth, but
merely followed John’s lead and said anything to support his
wishes. To the contrary, the three employees appeared to be
candid and sincere, and I credit them.7 Finally, I note that,
whenever John testified to something that could have been
supported by a document, that document had either been lost
or had not been considered important enough to produce at
the hearing. I find that there were no such documents, be-
cause the underlying story was not a statement of fact.8
For these reasons, I find that Respondent discharged
Siegrist, Quallet, and Marko in violation of Section 8(a)(3)
and (1) of the Act. I reject Respondent’s defense that they
were not even hired and, if they were, they were hired by
mistake. By any definition of the term, the employees were
hired. Respondent took applications from all of SIS’s em-
ployees, as well as others. The three were told by Essie and
Koester that they were good employees. Koester told them
that Respondent had ‘‘no problem’’ with hiring them, and he
told them that they had been hired. Respondent sent all ap-
plicants who it felt met minimum standards to a 2-week
training session. The three employees attended the training
session. Even if I accepted John’s testimony that this did not
mean that they were hired, despite the fact that all the other
employees were, John and Essie made it clear that once the
applicants were given their uniforms, they were hired. All
three received their uniforms.
More importantly, all three were scheduled by Koester to
work. Quallet was scheduled to work on the third (midnight)
shift on November 4. On arriving at work, Koester told him
that Respondent did not need him anymore, but refused to
give him a reason. Siegrist was scheduled to work on Friday
and did not, only because Respondent had no uniforms that
she could fit into. (Apparently, Respondent had uniforms
only for males.) Essie gave her, however, a belt, tie clip, hat,
and some other items. She was called at home on November
2 and told not to report because Respondent had still been
unable to find a uniform that would fit her.9 She reported to
work on November 3, and again there was no uniform for
her. Siegrist rummaged through the leftovers and found a
uniform that was at least satisfactory. She worked that day,
but not without first voicing her complaints that employees
who had been employed for 10 years and had earned week-
ends off were now being assigned to work on weekends. She
complained that Respondent had not considered her seniority
and that she was entitled to work on the first shift. By the
end of the day, Koester terminated her on the ground that
she did not fit Respondent’s criteria. He said that he had no
problem with her, but the decision had been made by ‘‘cor-
porate headquarters.’’ After Quallet was discharged, he
called Marko and told him what had happened and that
Marko was not scheduled to work on Monday, November 4;
so Marko called Koester and asked whether he was sched-
uled to work on Monday. Koester replied, as he did to
Quallet, that Marko’s services were not needed because he
did not fit Respondent’s criteria. With these three scheduled
by Respondent to work, it is obvious that all were hired.10
Their departure from employment was due, therefore, not
to the fact that they had never been hired but to their dis-
charge. The issue is what motivated that action. Koester
never gave the employees any reason for their discharge,
and, other than Respondent’s defense that it never hired
them, a defense that I have rejected, Respondent is silent.
There are two events that I find motivated Respondent. The
first occurred on October 31 when the employees reported to
Essie and Koester for their uniforms and were given their
work assignments. Then, Siegrist complained that the assign-
ments had not been made according to their seniority under
the union contract. She was a senior employee and entitled
to have her weekends off. In addition, she wanted to be on
day shift because she was the first shift union steward, and
she wanted to work 40 hours a week, not 32 hours, which
is what she had been assigned to. Quallet and perhaps Marko
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The narrations of Respondent’s witnesses about this incident
were not credible. Both Essie and Koester were hysterical in expand-
ing the incident beyond its worth. They had Siegrist and the others
carrying on in such a fashion complaining about the fact that Re-
spondent would not alter their uniforms and would not give them the
number of hours and schedules that they thought that their seniority
required that Koester was fearful for his life. He is a 29-year old,
healthy, muscular man, 5 feet, 11 inches tall, and weighs 210
pounds. I could not imagine that this security guard would be fright-
ened by anybody else, no less a shorter and older woman and two
older men. I discredit them totally, including their denial of knowl-
edge that the employees were merely exercising their rights as union
adherents and employees covered under a contract they thought still
applied to them.
12 Had John realized immediately the meaning of the ‘‘trouble-
makers’’ remark, he would not have hired them.
joined her complaints, thus identifying them as adherents of
the Union that John did not want.11
Respondent knew of all their activities. Siegrist told
Koester, after the training had begun, that she was the union
steward, that Quallet worked on all schedule sheets for the
union and attempted to ensure that the union complied with
the law, and that Marko was an alternate steward who helped
members write grievances and typed much of what the Union
needed. Furthermore, John knew that the three employees
were often together. That brings me to the second event:
John testified that the project manager of SIS had warned
him that the three were ‘‘troublemakers’’ and that they ought
to be kept apart. ‘‘Troublemakers’’ is often synonymous with
union activists. Respond First Aid, 299 NLRB 167, 169 fn.
12 (1990), enfd. mem. sub nom. NLRB v. Plouffe & Stuff,
Inc., 940 F.2d 661 (6th Cir. 1991) . These three were the
only employees who were mistakenly hired and then termi-
nated from employment. Once John found out about
Siegrist’s complaints about the denial of her and others’ se-
niority, that she was the union steward, and that she was re-
lying on her old union contract, he must have understood the
significance of the remark about them being ‘‘trouble-
makers’’ and realized that she and her two friends were dan-
gerous to his plans for continuing peaceful labor relations,
especially with Eck knocking on the door for union recogni-
tion.12
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982),
approved in NLRB v. Transportation Corp., 462 U.S. 393
(1983), the General Counsel must prove that the employees’
union activities motivated the employer to act as it did. Once
he has met this burden of proof, the employer must dem-
onstrate that it would have taken the same action that it did,
even in the absence of the union activities. Here, the General
Counsel proved his case. The timing of the discharges, short-
ly after Siegrist had asserted that she was the Union steward
and attempted to use the union contract as protection for the
employees, shows the motive for the abrupt discharge.
Respondent did not prove that there was any other fact
that caused the discharges. Rather, every time that John re-
lied on a document to support his position, and he was asked
where the relevant document was, he testified that it had
been lost or that he had not brought it. For example, he testi-
fied that those who were going back to work had to be
trained. So, he prepared a list, but omitted placing the names
of the three employees on the list. However, John no longer
had the list. In any event, remarkably, even though their
names were not on the list, the three employees attended the
training program. When John found out about the three em-
ployees ‘‘badgering’’ Essie about their schedules and alter-
ations to their uniforms, John then revised the list showing
the names of those who should be hired to delete the names
of the three employees, but John did not produce that list,
either. John testified that at a meeting held to determine
whom to hire at the ASO, he had a list of hiring criteria on
a scratch pad. He did not produce that, either. In addition,
his testimony was contradictory and internally inconsistent.
For example, John claimed that Koester made a mistake by
using a list of those persons entitled to carry guns as the list
of those whom John had hired. John testified that he found
out about the error when he heard that the three employees
had complained about their uniforms. However, he also re-
lied on the same incident as the reason that he did not hire
the employees.
John’s additional reason for not hiring them because they
did not pass their physical training test is belied by the fact
that the uniforms had been given out before the test was
given. But uniforms were given only to employees who had
already been hired, and thus it is obvious that the test was
not a qualification for hiring. For that reason, as well as the
reason that the three employees were credible witnesses and
Koester was not, I find that Koester told them that they did
not have to take the test. Furthermore, employees other than
Siegrist, Quallet, and Marko did not take the test, but they
were hired. In addition, it appears that the normal practice
was, in the case of an incomplete application, for the em-
ployee to be assigned to make up for what had not been
completed. Koester allegedly relied on the test that was out-
lined in Respondent’s manual; yet, Respondent did not
produce physical training test requirements from the manual,
and he could not remember them. Furthermore, there is a se-
rious question about what this test was all about. It appears
that the sole physical qualification for the job was breathing.
How else to explain that employees were supposed to run a
mile and one-half, measured by runs around a lake; but that
test was changed to three-quarters of a mile, or one run
around the lake, and some employees did not run, but walked
(at not too strenuous a pace) only three-quarters of a mile.
An employee who was supposed to do 20 leg lifts, did 5;
yet was hired. One employee passed muster, although he
stood 5 feet, 6 inches tall and weighed 300 pounds. Conven-
iently, Respondent never produced what it alleged to be its
‘‘height/weight standards.’’
There are a few more unfair labor practices alleged in the
complaint. On November 6, Siegrist attempted, on behalf of
the Union, to present Respondent more than 40 grievances
regarding hours of employment, insurance benefits, and em-
ployee discipline. As was customary under the SIS contract,
she gave the grievances to Respondent’s lieutenants, with in-
structions that they be turned over to Koester; and Koester
never denied receiving them. On May 6, 1992, Eck sent Re-
spondent a grievance regarding the discharge of Steve Cruz.
Respondent received the latter document at ASO, but did not
open it, forwarding the same to its Springfield, Virginia post
office box address, where John, typically, refused to accept
the document. As noted above, I find that it was validly
served.
The General Counsel acknowledges that, because a succes-
sor employer is not bound by its predecessor’s collective-bar-
189SWANSON GROUP
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
gaining agreement, Respondent was under no obligation to
adhere to the strict terms of the grievance machinery estab-
lished by the agreement. However, Respondent was obliged
to address the grievances of its employees in the same fash-
ion as it was obliged to recognize and bargain with the
Union regarding contract negotiations. Kenton Transfer Co.,
298 NLRB 487, 488–489 (1990); Storall Mfg. Co., 275
NLRB 220, 221 (1985), enfd. 786 F.2d 1169 (8th Cir. 1986).
I conclude that Respondent violated Section 8(a)(5) of the
Act.
The unfair labor practices found herein, occurring in con-
nection with Respondent’s business, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in numerous
unfair labor practices, I shall recommend that they cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act. Specifically, I shall
order Respondent to offer immediate and full reinstatement
to Margaret Siegrist, Thomas Quallet, and Michael Marko to
their former positions or, if those positions no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, and to make them whole for any loss of wages and
other benefits they may have suffered by reason of Respond-
ent’s discrimination against them, in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest
as computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). I shall also order that Respondent recognize the
Union as the exclusive collective-bargaining representative of
its employees in the appropriate unit, and, on request, meet
and bargain with the Union and discuss and process the em-
ployee grievances with the Union.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, The Swanson Group, Inc., Philadelphia,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging its employees because of their union ac-
tivities.
(b) Refusing to recognize and bargain collectively and in
good faith with International Union, United Plant Guard
Workers of America and its Local 506 as the exclusive col-
lective-bargaining representative of its employees in the fol-
lowing appropriate unit:
All full time and regular part time security officers
employed by The Swanson Group, Inc. at the Naval
Aviation Supply Office located in Philadelphia, Penn-
sylvania, excluding all other employees, managerial and
administrative employees and supervisors as defined in
the Act.
(c) Refusing to discuss and process its employees’ griev-
ances with the Union.
(d) Recognizing The Brotherhood of Armed and Unarmed
Security Guards as the exclusive collective-bargaining rep-
resentative of its employees in the above unit, and from ap-
plying the terms and conditions of the collective-bargaining
agreement that it allegedly negotiated with the Brotherhood
covering that unit, unless and until the Brotherhood is cer-
tified by the National Labor Relations Board as the exclusive
collective-bargaining representative for the unit, provided,
however, that this should not be construed to require or per-
mit the varying or abandoning of any provision of the agree-
ment that increased its employees’ wages and benefits over
those which previously existed.
(e) Requiring as a condition of employment that its em-
ployees in the above unit become or remain members of the
Brotherhood pursuant to the collective-bargaining agreement
between Respondent and the Brotherhood, or otherwise ex-
tending or applying any of the provisions of the agreement
or any modification, extension, or renewal thereof, to its em-
ployees, unless and until the Brotherhood has been certified
by the Board as the representative of its employees in the
above unit.
(f) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Margaret Siegrist, Thomas Quallet, and Michael
Marko immediate and full reinstatement to their former posi-
tions or, if those positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed, and make
them whole for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any references to the unlawful
discharges of Margaret Siegrist, Thomas Quallet, and Mi-
chael Marko and notify them in writing that this has been
done and that the discharges will not be used against them
in any way.
(c) Recognize the Union as the exclusive collective-bar-
gaining representative of its employees in the above unit and,
on request, meet and bargain with the Union concerning
wages, hours of employment, and other terms and conditions
of employment and, if an understanding is reached, embody
such understanding in a signed agreement.
(d) Discuss and process its employees’ grievances with the
Union on its request.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its location at the Naval Aviation Supply Office
in Philadelphia, Pennsylvania, copies of the attached notice
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 If this 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.’’
marked ‘‘Appendix.’’14 Copies of the notice, on forms pro-
vided by the Regional Director for Region 4, after being
signed by Respondent’s authorized representative, shall be
posted by Respondent immediately on receipt and maintained
for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge our employees because of their
union activities.
WE WILL NOT refuse to recognize and bargain collectively
and in good faith with International Union, United Plant
Guard Workers of America and its Local 506 as the exclu-
sive collective-bargaining representative of our employees in
the following appropriate unit:
All full time and regular part time security officers
employed by The Swanson Group, Inc. at the Naval
Aviation Supply Office located in Philadelphia, Penn-
sylvania, excluding all other employees, managerial and
administrative employees and supervisors as defined in
the Act.
WE WILL NOT refuse to discuss and process our employ-
ees’ grievances with the Union.
WE WILL NOT recognize The Brotherhood of Armed and
Unarmed Security Guards as the exclusive collective-bargain-
ing representative of our employees in the above unit, and
from applying the terms and conditions of the collective-bar-
gaining agreement that we allegedly negotiated with the
Brotherhood covering that unit, unless and until the Brother-
hood is certified by the National Labor Relations Board as
the exclusive collective-bargaining representative for the unit,
provided, however, that this should not be construed to re-
quire or permit the varying or abandoning of any provision
of the agreement that increased our employees’ wages and
benefits over those which previously existed.
WE WILL NOT require as a condition of employment that
our employees in the above unit become or remain members
of the Brotherhood pursuant to the collective-bargaining
agreement between us and the Brotherhood, or otherwise ex-
tending or applying any of the provisions of the agreement
or any modification, extension, or renewal thereof, to our
employees, unless and until the Brotherhood has been cer-
tified by the Board as the representative of our employees in
the above unit.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the National Labor Relations
Act.
WE WILL offer Margaret Siegrist, Thomas Quallet, and Mi-
chael Marko immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them, with
interest.
WE WILL remove from its files any references to the un-
lawful discharges of Margaret Siegrist, Thomas Quallet, and
Michael Marko and notify them in writing that this has been
done and that the discharges will not be used against them
in any way.
WE WILL recognize the Union as the exclusive collective-
bargaining representative of our employees in the above unit
and, on request, meet and bargain with the Union concerning
wages, hours of employment, and other terms and conditions
of employment and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL discuss and process our employees’ grievances
with the Union on its request.
THE SWANSON GROUP, INC.