Gold Shield Security

National Labor Relations Board - Board Decisions

Jan 15, 1992

306 N.L.R.B. 20 (N.L.R.B. 1992)

20
306 NLRB No. 7
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to relate to the year
1990.
Gold Shield Security and Investigations, Inc. and
Allied International Union. Cases 29–CA–14955
and 29–RC–7619
January 15, 1992
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 19, 1991, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respond-
ent filed exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and has decided to af-
firm the judge’s rulings, findings, and conclusions to
the extent consistent with this Decision.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act on three separate occasions. We
agree. The judge also found that the Respondent’s con-
duct on the last occasion, the only objectionable con-
duct occurring within the critical period, warranted set-
ting aside the election. We disagree.
In mid-May 1990, William Weinig, the Respond-
ent’s vice president, telephoned employee Bruce
Batalitzky at his worksite and asked him not to talk to
any union representatives. We agree with the judge
that this constituted an 8(a)(1) violation. There is no
evidence, however, that Weinig’s instruction to
Batalitzky was overheard by or disseminated to any
other of the more than 60 employees eligible to vote
in the June 22, 1990 election. In these circumstances,
we find that the conduct is isolated and did not affect
the results of the election. See Caron International,
246 NLRB 1120 (1979). Accordingly, we find that the
election conducted on June 22, 1990, was valid and
that a certification of results of election should issue.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Gold Shield Security and
Investigations, Inc., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for Allied International Union and
that it is not the exclusive representative of these bar-
gaining unit employees.
James Kearns, Esq., for the General Counsel.
Jonathan P. Arfa, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on April 8, 1991, in Brooklyn, New York.
The complaint which issued on August 29, 1990,1 was based
on an unfair labor practice charge filed on June 27 by Allied
International Union (the Union). The complaint alleges 11 in-
cidents of 8(a)(1) conduct by Respondent in mid-May and
one incident on June 22; most of these allegations involve
activities by John Konior and William Weinig, Respondent’s
president and vice president, and admitted agents of Re-
spondent.
On September 10 the Regional Director for Region 29 of
the Board issued a report on objections, order consolidating
cases and notice of hearing. This report states that an elec-
tion was conducted on June 22 in a unit consisting of all
full-time and regular part-time security officers employed by
the Employer-Respondent, excluding all other employees, of-
fice clerical employees, and supervisors as defined in the
Act. The tally of ballots showed the following:
Number of votes cast for the Petitioner-Union.......7
Number of votes cast against Petitioner-Union.....43
Number of challenged ballots.................................11
Challenges were not sufficient to affect the results of the
election. On June 27 the Petitioner filed timely objections to
conduct affecting the results of the election. Objection 3 is
as follows: ‘‘The employer threatened that certain individuals
will be discharged if they vote in the election . . . .’’ The
Regional Director found that as Objection 3 involves the
same conduct as is alleged in the complaint herein, the cases
should be consolidated for hearing.
On the entire record, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with its principal of-
fice located in Brooklyn, New York, is engaged in providing
security services to various enterprises. Annually, in the
course and conduct of its business operations, Respondent
performs security services valued in excess of $50,000 in
States other than the State of New York. Respondent admits,
and I find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
As stated, there are numerous 8(a)(1) allegations consoli-
dated with Objection 3 in the instant matter; however, Gen-
eral Counsel called only two witnesses, Edward Oquendo
21GOLD SHIELD SECURITY
and Bruce Batalitzky, who testified to five instances of al-
leged 8(a)(1) conduct. Two of these instances involved
Konior, and one involved Weinig. The remaining two inci-
dents involved Salvatore Rasulo, alleged to be a supervisor,
and Charlie Miller, alleged to be the head supervisor. Re-
spondent called no witnesses to rebut General Counsel’s
case.
The petition was filed on April 27; the Stipulated Election
Agreement was entered into by Respondent and the Union
on May 21 and the election was conducted on June 22.
Oquendo, who was employed by Respondent as a security
guard from February to the end of May, testified that: ‘‘I
think around May, no, April,’’ on a Monday, Konior called
the worksite where he and his partner, Andy Yarnette, were
then working: ‘‘He asked us if we heard anything about the
union and I said no, at that time.’’ Konior asked Oquendo
if a ‘‘union guy’’ was around. Oquendo asked why, and
Konior said that they were signing petitions. Oquendo said
that he hadn’t seen him. Konior then said that he wanted to
see Oquendo and Yarnette in his office. About 3 days later
(on Thursday) they went to Konior’s office where they met
with him and Weinig. Konior said that if the union people
came to their worksite they should not let them on the prem-
ises; he also said that the Union was a ripoff and they only
wanted the employees’ money; he had been a policeman and
was a member of the union, but he never received a pension.
Konior then said that if they joined the Union and went on
strike, ‘‘that we would lose our jobs and he would change
the name of the company and hire new workers.’’ Oquendo
and Yarnette said that he couldn’t do that and Konior said
that he could do anything since it was his company.
That evening, while they were at work, Rasulo came to
their worksite and asked them why Konior had them come
to the office. They told him what Konior had said, that he
said ‘‘that he could change the company.’’ Rasulo said: ‘‘He
could do anything he wants. That’s his company.’’ At about
8 p.m. that day Miller called their worksite; he told them that
he had also retired and never received a union pension. They
then told Miller what Konior had said about changing the
company name and hiring new employees if they went on
strike; Miller said: ‘‘Yes, he could do that. He could do any-
thing he wants with his business. All he would have to do
is move his location from where he is at there, and move to
another one and just change the name.’’ Yarnette then got
on the phone and Oquendo heard him tell Miller that the
Union would be good for their families because it would
give them benefits. When Oquendo got back on the phone
with Miller, Miller told him that before they signed to join
the Union they should think about their families.
Batalitzsky testified that in early to mid-May Weinig
called him at his worksite and said not to talk to the union
representative, and if he showed up at the worksite to ask
him to leave. He answered: ‘‘Okay.’’
As there are allegations regarding statements made by
Rasulo and Miller, it is necessary to determine their super-
visory status.
Oquendo testified that Rasulo was a supervisor: ‘‘He
would come in the evening to check up once a day on us.
He would see how we were doing, and he would sign his
name on the book, and then he would leave.’’ On occasions
when a guard called Oquendo to say that he would not ap-
pear for work at Oquendo’s worksite (whether for the same
shift or the next shift), Oquendo would use a beeper to con-
tact either Rasulo or Miller; on these occasions Rasulo
‘‘would say wait down until I bring somebody to come in.’’
On those occasions when Oquendo was sick and could not
report for work he called Konior or Weinig. Batalitzsky testi-
fied that Konior and Weinig gave him his work assignments
and one of them came to his worksite each morning ‘‘to see
if everything was all right.’’ Rasulo came to his worksite
twice a day: ‘‘He basically went around checking the sites
to make sure everything was all right. He would stop, make
sure everything was okay, sign the log book.’’
Oquendo testified that Miller was the head supervisor; he
‘‘stays in the office through the night. He sometimes, once
in a blue moon, would stop by the sites.’’ When he comes
to the sites: ‘‘He sees how we are doing and sometime he
will write his name on the book and sometime he won’t.
And then he just checks up on us and he leaves.’’ If a super-
visor (presumably Rasulo) cannot make it to a worksite, Mil-
ler will, at times, go there in his place. When Oquendo has
called him to tell him that a guard did not appear for work
at the site, Miller, at times, brings a replacement guard to the
site. On occasion, individuals whom Oquendo did not know
came to the worksite and said that they were standby em-
ployees; on these occasions Oquendo called Miller to verify
their employment.
IV. ANALYSIS
It is initially alleged that Rasulo and Miller are supervisors
within the meaning of Section 2(11) of the Act. The testi-
mony establishes that Rasulo had the title ‘‘supervisor’’ and
Miller was the ‘‘head supervisor’’; however, job titles do not
a supervisor make. Omnix International Corp., 286 NLRB
425 (1987), and Bowne of Houston, 280 NLRB 1222 (1986),
where the Board stated: ‘‘The proper consideration is wheth-
er the functions, duties and authority of an individual, regard-
less of title, meet any of the criteria for supervisory status
defined in Section 2(11) of the Act.’’ The burden of proving
that an individual is a statutory supervisor rests on the party
alleging that such status exists. Tucson Gas & Electric Co.,
241 NLRB 181 (1979). I find that General Counsel has not
sustained that burden. Section 2(11) is phrased in the dis-
junctive so the individual need possess only one of the enu-
merated powers to be a supervisor under the Act. NLRB v.
Ohio Power Co., 176 F.2d 385 (6th Cir. 1949). There is
clearly no evidence that Rasulo or Miller can hire, fire, pro-
mote or reward employees, either on their own or effectively
recommend such. The question therefore is whether they can
responsibly direct the employees in such a manner as re-
quires the use of independent judgment.
The evidence establishes that Rasulo goes to the jobsites
once or twice a day, looks over the area, and signs his name
to the logbook. On those occasions that a guard did not ap-
pear for work, Rasulo brought a replacement to the jobsite.
As there is no evidence that this involved responsible direc-
tion of work requiring the use of independent judgment, I
find that General Counsel has failed to establish that Rasulo
is a supervisor within the meaning of the Act. There is also
no evidence that Miller exercises supervisory authority as de-
fined in the Act. The evidence establishes that he spends
most of his time in Respondent’s office during the nightime
hours and rarely goes to the jobsites. When he does, ‘‘he
sees how we are doing’’ and, at times, signs the logbook.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Like Rasulo, he sometimes brings a replacement guard to the
jobsite. I therefore find that the evidence fails to establish
that Miller is a supervisor within the meaning of the Act.
In April (or possibly May), as will be discussed more fully
below, Konior called Oquendo’s jobsite and asked him if he
had heard anything about the Union and he said that he
hadn’t. Konior asked if the ‘‘Union guy’’ was around and
Oquendo said that he hadn’t seen him. There is no evidence
that Oquendo was an active and open union supporter or that
he and Konior had a friendly relationship. Konior was the
president of Respondent and Respondent established no valid
reasons for the questioning. For example if there was cred-
ible evidence that union representatives were on the premises
of the Respondent’s customers, without authorization, that
could be a valid reason for Konior’s questions. His questions
to Oquendo were not phrased in that manner, however. I
therefore find that under the totality of circumstances test set
forth by the Board in Rossmore House, 269 NLRB 1176
(1984), and Sunnyvale Medical Clinic, 277 NLRB 1217
(1986), Konior’s questioning of Oquendo violates Section
8(a)(1) of the Act. When Oquendo and Yarnette went to
Konior’s office 3 days later, Konior said that if the union
people came to his worksite they should not let them on the
premises. Oquendo testified that Respondent’s policy is that
only people with proper identification are allowed on prem-
ises that Respondent’s guards are protecting. This statement
was therefore a lawful reiteration of Respondent’s rule. How-
ever, Konior then told them that if they joined the Union and
went on strike they would lose their jobs and he would
change the name of the Company and hire new workers.
When they protested that he couldn’t do that, Konior said
that he could do anything since it was his company. Al-
though Konior could have lawfully informed Oquendo and
Yarnette of their right to strike and his corresponding right
to hire strike replacements, he instead said that if they went
on strike they would lose their jobs and he would change the
company name and hire new employees; since it was his
company, he could do anything he wanted. This goes way
beyond his free speech right and intrudes upon the employ-
ees’ right to engage in Section 7 activity without fear of re-
prisals. This threat therefore violates Section 8(a)(1) of the
Act.
The sole remaining allegation (covered in par. 17 of the
complaint) is Batalitzsky’s testimony that in about early
May, Weinig called him at the jobsite and said not to talk
to the union representative and if he showed up at the jobsite
to ask him to leave. The second part of this statement was
clearly lawful as a reiteration of Respondent’s rule against
unauthorized individuals being on the property Respondent’s
guards were protecting. However, the first part of Weinig’s
statement to Batalitzsky violates Section 8(a)(1) of the Act
as it was made by Respondent’s vice president, without any
apparent valid reason, and there was no evidence that
Batalitzsky was an open and active union supporter, or that
he and Weinig had an open and friendly relationship.
Turning to the objections, the only specific objection re-
maining is Objection 3, which alleges that Respondent threat-
ened to discharge employees if they voted in the election.
There is no evidence to support this objection. However, the
Regional Director, in his report on objections, order consoli-
dating cases, states that in his investigation of the objections
and the unfair labor practice charge subsequently filed by the
Union, numerous other allegations were uncovered which be-
came the basis for the complaint which issued on August 29.
The law is clear that such allegations may serve as the basis
for setting aside an election even when they were not specifi-
cally alleged in the Union’s objections filed within 7 days of
the election. American Safety Equipment, 234 NLRB 501
(1978); Burns Security Services, 256 NLRB 959 (1981), and
White Plains Lincoln Mercury, 288 NLRB 1133 (1988).
However, to serve as a basis for setting aside an election
such conduct must have occurred between the date the peti-
tion was filed, April 27, and the date that the election was
conducted, June 22. Ideal Electric & Mfg. Co., 134 NLRB
1275 (1962).
Oquendo testified that Konior called him at the jobsite on
a Monday afternoon: ‘‘I think around May, no, April.’’ He
and Yarnette went to Konior’s office, as directed, on Thurs-
day, 3 days later: ‘‘I think it was . . . April.’’ The conduct
alleged constitutes grounds for setting aside the election; the
question is whether it occurred during the critical period. The
final day in April 1990 was April 30, a Monday. For both
the Monday telephone call and the Thursday office meeting
to have occurred in April, as Oquendo testified, the latest
that it could have occurred was April 23 and 26, prior to the
petition having been filed. General Counsel has not sustained
his burden of establishing that the activity occurred during
the critical period and I therefore recommend that it be over-
ruled. Operating Engineers Local 295–295C (Weather Wise),
282 NLRB 273 (1986).
Batalitzsky testified that Weinig called him and told him
not to talk to the union representatives and to ask them to
leave if they appear at the jobsite. I have previously found
that Weinig’s warning to Batalitzsky not to talk to the union
representatives violates Section 8(a)(1) of the Act. The re-
maining issue therefore is whether it occurred within the crit-
ical period and therefore constitutes conduct which would
overturn the results of the election. Batalitzsky testified that
he worked for Respondent until about 2 weeks before the
election (which took place on June 22) and that he received
the phone call from Weinig: ‘‘A few weeks before I left.’’
That would place the call in about mid-May, clearly within
the critical period. I therefore sustain this objection.
V. THE EFFECT OF SUCH CONDUCT ON THE ELECTION
Having sustained the objection regarding Weinig’s state-
ment to Batalitzsky, I will recommend that the election con-
ducted on June 22 be set aside.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act in the
following manner.
(a) Interrogating employees about their union activities.
(b) Threatening to terminate its employees due to their
protected concerted activities.
(c) Directing its employees not to engage in union or other
protected concerted activities.
4. The Respondent did not further violate the Act as also
alleged in the complaint.
23GOLD SHIELD SECURITY
2 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.
3 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.’’
5. The Respondent’s unlawful conduct interfered with the
representation election conducted on June 22, 1990.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that Respondent cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act, to wit, the post-
ing of the notice.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Gold Shield Security and Investigations,
Inc., Brooklyn New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating its employees regarding their union activ-
ity.
(b) Threatening to terminate its employees due to their
protected concerted activities.
(c) Directing its employees not to engage in union or other
protected concerted activities.
(d) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its Brooklyn, New York location copies of the
attached notice marked ‘‘Appendix.’’3 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt 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 Re-
spondent to insure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the election conducted on
June 22, 1990, in Case 29–RC–7619 be set aside and a new
election be held at such time as the Regional Director of Re-
gion 29 decides that the circumstances permit the free choice
of a bargaining representative.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar 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
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT interrogate our employees regarding activi-
ties on behalf of Allied International Union (the Union) or
any other labor organization.
WE WILL NOT threaten our employees with discharge for
striking or engaging in other protected concerted activity.
WE WILL NOT direct our employees to refrain from engag-
ing in activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guranteed
you by Section 7 of the Act.
GOLD SHIELD SECURITY AND INVESTIGATION, INC.