Brodart, Inc.

National Labor Relations Board - Board Decisions

Jul 29, 1981

257 N.L.R.B. 380 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brodart, Inc. and District 65, United Automobile
Workers. Cases 4-CA-11017-2 and 4-CA-
11017-3
July 29, 1981
DECISION AND ORDER
On March 27, 1981, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Coun-
sel filed an answering brief to Respondent's excep-
tions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order. 2
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, Brodart, Inc.,
Williamsport, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
' Respondent has excepted to certain credibility Findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
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 an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT coercively interrogate our
employees about their union activities.
WE WILL NOT create among our employees
the impression that their union activities are
under surveillance.
WE WILL NOT discourage membership in
District 65, United Automobile Workers, or in
any other labor organization, by discrimina-
torily discharging or transferring any of our
employees or in any other manner discriminat-
ing against them with respect to their hire or
tenure of employment or any term or condi-
tion of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Rela-
tions Act.
WE WILL offer employee Carol Keller im-
mediate and full reinstatement to her former
job, or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice
to her seniority or other rights and privileges
and make her whole for any loss of earnings,
with interest.
BRODART, INC.
DECISION
FRANK H. ITKIN, Administrative Law Judge: Unfair
labor practice charges were filed in this case by District
65, United Automobile Workers (the Union), on April 21
and a consolidated complaint issued on May 30, 1980. A
hearing was conducted in Williamsport, Pennsylvania, on
January 7, 1981. The General Counsel alleges that Bro-
dart, Inc. (Respondent), violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended, by
creating the impression among its employees that their
union activities were under surveillance; by interrogating
employees about union activities; by discharging employ-
ee Carol Keller; and by transferring employee Mary Ann
Metzger to another department. Respondent denies that
it has violated the Act. Respondent alleges in its answer:
. .Carol Keller was discharged because she was a
supervisor within Section 2(11) of the Act, who had
attended a Union meeting and disclosed information
concerning the Respondent to the Union. Mary
Ann Metzger was transferred because Respondent
wished to quell rumors that she had disclosed confi-
dential information to the Union.
Upon the entire record in this case, including my ob-
servation of the demeanor of the witnesses, and after due
consideration of the briefs of counsel, I make the follow-
ing findings of fact and conclusions of law:
FINDINGS OF FACT
Respondent is engaged in the manufacture of library
furniture and in the wholesale distribution of books at its
facilities in Williamsport, Pennsylvania. Respondent is
admittedly an employer engaged in commerce as alleged.
The Union is admittedly a labor organization as alleged.
257 NLRB No. 77
380
BRODART, INC.
Carol Keller testified that she worked for Respondent
over 11 years prior to her discharge on April 4, 1980;
that her last position with Respondent was "payroll su-
pervisor"; that she started working in the payroll office
about August 27, 1979, and was made "payroll supervi-
sor" on November 12, 1979; that the only other person
working in that office with her was employee Mary Ann
Metzger; and that Richard Snodgrass, Respondent's as-
sistant treasurer, was their "immediate supervisor."
Keller explained that she, with the assistance of Metzger,
"got out" Respondent's payroll.'
During early 1980, the Union attempted to organize
Respondent's approximately 850 hourly paid employees.
Keller testified that she became "involved" with the
Union about February 2, 1980, as follows. "The only
thing that I did, I passed out a few Union authorization
cards and I had made [an employee] name and address
list." Keller explained that she, with the assistance of
Metzger, "prepared an address list" from Respondent's
"computerized list" of its hourly paid employees and
gave it to the Union. Keller added that she also attended
union meetings.
Keller recalled that about March 1, 1980, she and
Metzger "were discussing the Company's benefits and
the pension plan" in the payroll office; that Snodgrass
"came in" and "he just started talking to us"; that
Metzger "asked why doesn't the Company do something
for us"; and that Snodgrass "just said, the Company
needs something, but not a Union." Later, as Keller fur-
ther testified, "Mr. Snodgrass came in and he mentioned
that he knew we were attending the Union meetings and
he said, nothing was to be said about the payroll."
Keller next testified that on or about April 2, 1980:
Mr. Snodgrass came in the office and he said there
was a nasty rumor floating around that . . . some
confidential booklets had been stolen from David
Stark's office . . . the cost department supervisor.
They were confidential. They were only to be seen
by the board of directors. I was accused of taking-
passing them around at the [union] meeting, and
also another person.
Snodgrass described the other "person," and Keller and
Metzger
. . . looked at each other until we realized that it
was Mary Ann [Metzger] herself who was also ac-
cused. Well, we both denied it. And Mary Ann was
really furious and she wanted to see the person who
made the accusation, but Dick [Snodgrass] said he
didn't know who it was. He said, I'm bucking a
vice president ....
Snodgrass terminated Keller a few days later, on April
4, 1980. Keller recalled:
He told me that the reason for my dismissal was my
position of supervisor of the payroll office. He said,
counsel had decided that . . . as part of Manage-
'The evidence pertaining to Keller's alleged supervisory status is dis-
cussed below.
ment I could get the Company into a lot of trouble
by attending these meetings ....
Keller added that "when Dick told me of my dismissal, I
asked him . . . what about Mary Ann, and he said . . .
as of Monday April 7, she'll be in the tax depart-
ment. . . ."2
Mary Ann Metzger testified that she worked for Re-
spondent about 1-1/2 years; that "she started out as a de-
posit clerk and back-up payroll [clerk] for quite a few
months and then was in payroll and then . . . back to
deposit clerk and back in payroll . .. "; and that "on
April 4 . . . I was . . . called at home and told, Monday
morning I was starting in the tax department." Metzger
recalled that she had worked in the payroll office, prior
to her last transfer, from November through April 1980,
and that Snodgrass was her "immediate supervisor."
Metzger related that she became involved with the
Union during March 1980, as follows: "Handed out a
few [union] cards and tried to help compile an address
list of hourly people." About March 1, 1980, as Metzger
further testified, "Mr. Snodgrass came into the office and
said . . . that there were factions moving through Bro-
dart and that it went without saying that this . . . pay-
roll office . . . everything was confidential .... "
Metzger stated to Snodgrass that she "heard all the pros
for a Union, give me some cons, to which he gave an
example or two .... " Snodgrass asked "what went on
at the Union meetings." Metzger responded: "... they
were gripe sessions .... "
Thereafter, about April 2, as Metzger testified:
Mr. Snodgrass kind of flew in the office and said
there is some ugly rumors being circulated that
you-and he was addressing Carol-handed around
some books, some very confidential material, at the
Union meeting last night. And the way-the first
thing I said, because I was there too, was "Who
said this?," you know, who said this happened, be-
cause nothing was passed around last night, and
again he directed his question to Carol and said,
"Do you remember a tall girl with modern glasses
and short hair sitting close by you?" Of course,
Carol and I sort of looked at each other and
thought and realized it was me. And he said at that
time-I said, "That was me. That was me. I was sit-
ting right by Carol." And he said, "It was rumored
that you might be there .... " Over and over I
kept saying I want to see who this person is because
it infuriated me to think, you know, we were ac-
cused of stealing something out of Brodart when we
were surrounded by things, you know, especially
from someone else's office. And I think at that
time-I don't remember if it was Carol or I said,
does this mean that we're fired. I think Carol said
that, Does this mean that we're fired and he said,
"No, but I'm bucking a Vice President."
2 Keller testified on cross-examination that Snodgrass "also did ask us
once what went on at . Union meetings" On redirect, she placed this
conversation in March and explained that she told Snodgrass, in answer
to his question. "the same old stuff'
381
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, on April 4, Metzger asked Snodgrass:
"How do things stand with Carol and I." Snodgrass re-
plied: "I'm still banging away at it." Metzger "told
[Snodgrass] it was . . . totally stupid .... " Snodgrass
asked: "Well, what goes on at these Union meetings."
Metzger replied: "The same old thing . . . it's a rehash
. . ; it's a gripe session . . . ; it'll never get in . . . be-
cause there's too big a turnover at Brodart." Metzger
then went home. She was later notified on the telephone
by Keller that Keller "got it"-Keller was "fired." Snod-
grass, during this same conversation, "got on the phone
and . . . said he tried his best but the only concession he
got was he could keep me, and I was to be in the tax
credit [department] starting Monday morning." Metzger
thereafter worked in the tax department; she also assisted
in the payroll department.
Metzger, on cross-examination, denied that Snodgrass
had stated to her that the April 4 "transfer from payroll
. . really was to protect [her] from rumors that [she]
might have stolen something." Metzger explained: "We
never discussed it." Metzger was not told "why" she
was "transferred." 3
Richard Snodgrass, formerly employed by Respondent
as assistant treasurer, was asked: "Do you recall having
any discussions with Ms. Keller and Ms. Metzger on or
about March 1, 1980?" He testified:
I really can't recall the dates, but I did have some
discussions with them.... I guess there was the
one discussion where I went into the payroll depart-
ment and pretty much my exact words were that
there would be some people possibly coming to
them asking for information and I depended on
them that nothing was going to leave our payroll
department because of confidentiality .... Several
other times when I came into the payroll depart-
ment there were discussions going on and I was
asked questions regarding the Union, regarding my
opinion, regarding pros and cons of the Union, and
I responded to those questions.
Snodgrass was asked about a meeting with Keller and
Metzger on April 2. Snodgrass testified as follows:
Q. Do you recall any discussion you might have
had?
A. Yes. At that point in time I had heard a rumor
and I had been informed by my supervisor of a
rumor that the information-a few days prior we
had had some information [of] some board of direc-
tors' booklets stolen from an office and the informa-
tion had come back to us that those booklets were
turned over to the Union at the Union meeting. I
went into the office to ask what the situation is, be-
cause one of my-you know, what I was trying to
do was, I basically try to deal with my employees
from a standpoint of straight. I want to deal with
them straightly and get straight answers from them
Metzger subsequently terminated her employment with Respondent.
There is no contention made here that she was unlawfully discharged. It
was stipulated that Metzger's April 4 transfer to the tax department did
not result in any monetary loss.
and deal with them fairly. So, I simply wanted to
know what the situation was and I asked them if
they know anything about it and if they did take
those booklets and give them to the Union and to
that they answered no. And I said fine, I believe
you and I'll try to take care of it.
Q. What, if any, discussions did you have with
anyone else regarding this problem of the missing
board of directors' booklets?
A. Other discussions?
Q. Yes.
A. Of what nature?
Q. Regarding Keller's and Metzger's involvement
of possible theft of the board of directors' minutes.
A. Okay. I had been told by my supervisor that
he had heard this rumor also and he was very upset
about it.
Q. Was your supervisor aware at that time that
Keller had been attending Union meetings?
A. No. No, he was not aware of that.
Q. Did you tell him at that time that she had?
A. Yeah. That was one of the things that really
concerned him about it because he was not aware at
that point they had been attending Union meetings
and this was the first thing that really came to his
attention. I told him yes apparently they had been
attending because they told me that and that was
pretty much it.
Snodgrass was asked about his meeting with Keller on
April 4. He testified as follows:
Q. Would you state, for the record, what your
recollection is of that discussion?
A. I came into the payroll office and told her
that I had discussed the situation regarding the
booklets and her attendance at the Union meetings
and that they were very upset about the fact that
she is a supervisor, was attending Union meetings
and that I'd have to terminate her.
Q. Was it your decision to terminate her?
A. No.
Q. Who instructed you to terminate her?
A. My supervisor.
Q. What did you tell Keller regarding her attend-
ance at Union meetings, if anything?
A. Okay. As I stated, I told her that-at the dis-
missal, that she was being dismissed because she
was attending Union meetings and she was a super-
visor and she wasn't allowed to do that.
Snodgrass acknowledged that no "other reasons were
given to" Keller for her discharge.'4
4 Snodgrass was asked if he had related to his supervisor the fact that
he "believed" Keller's and Metzger's denials of "any involvement" with
respect to the theft of certain company books. Snodgrass testified:
Yes. I think he [the supervisor] was more concerned at that point
about them-Carol attending the meeting because she was a supervi-
sor because he had not been aware of that up to that point.
382
1BRODART. INC.
In addition, Snodgrass was asked if he had indicated at
any time to Metzger "why she was being transferred."
Snodgrass testified:
I don't know. Things were pretty strained at that
time. I may not have said anything directly to her
[Metzger] at that point. I transferred her and
wanted her transferred because of all the problems
that had blown up over the thing. Upper Manage-
ment was very upset about (1) the fact that there
was this rumor of the confidential information and
(2) that the supervisor was attending the meetings
and they just wanted the whole thing cleaned up
because it was in the payroll department. We didn't
want any kind of-I didn't want anything left in the
payroll department where, you know, any kind of
remnant of this whole thing because I knew that
Carol and Mary Ann were friends and if I let Carol
go that Mary Ann could potentially retaliate with
all the confidential information she's got. I just
didn't want to have to worry about any of that. So,
the easiest resolution was to take Mary Ann out of
the confidential situation.s
I credit the testimony of Keller and Metzger as sum-
marized above. Their testimony is in large part mutually
corroborative. Their testimony is also substantiated in
significant part by the testimony of Snodgrass. And, rely-
ing also upon demeanor, Keller and Metzger impressed
me as trustworthy and reliable witnesses. As noted,
Snodgrass did not controvert much of the testimony of
Keller and Metzger. Insofiar as the testimony of Keller
and Metzger differs with the testimony of Snodgrass, I
am persuaded here that the testimony of Keller and
Metzger is more detailed, complete, and reliable.
Discussion
A. The Firing of Keller and Transfer of Metzger
Keller credibly testified, as recited supra, that on April
4, 1980, Company Assistant Treasurer Snodgrass sum-
marily fired her and "told [her] that the reason for [her]
dismissal was [her] position of supervisor of the payroll
office. [Snodgrass] said, counsel had decided that . . . as
part of Management [she] could get the Company into a
lot of trouble by attending these union meetings ....
Indeed, Snodgrass admitted apprising Keller on April 4
"that she was being terminated because she was attend-
ing Union meetings and she as a supervisor and she
wasn't allowed to do that." Snodgrass further admitted
that no "other reasons" were given to Keller for her
firing.
The protective provisions of the National Labor Rela-
tions Act extend only to "employees"--a term which ex-
On cross-exanmination, Snodgrass recalled that Metzger had asked him
"what [heJ though: of the Ulnion . "and he told her "that rondarl mav
have some prohlems. but I did not believe a Union wkas the way
to solve them. On redirect xamii atlll. Sodg ras wa;l asked if he
"eer ask[ed] eilher Keller or Metzger] s. hal went on at the Union
meetings they had attllended" Snoldgras, anssecred in part:" I rall)
can't ever recollect the direct question . t cant reall' ceer recollect
asking that question directly I mais hae, hut I dol'l think so" Sd-
grass. however, acknoledged tIha Metzger disclosed to him "that thex
were Just gripe LcsIlOlls
eludes "any individual employed as a supervisor." Thus,
since Keller was admittedly fired for "attending Union
meetings," the principal question raised here is her al-
leged supervisory status. A "supervisor" is defined in
Section 2(11) of the Act, as:
. . .any individual having authority, in the interest
of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward or disci-
pline other employees, or responsibly to direct
them, or to adjust their grievances. or effectively
recommend such action, if in connection with the
foregoing the exercise of such authority is not of a
merely routine or clerical nature, but requires the
use of independent judgment.
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rulebook author-
ity. It is well settled that a rank-and-file employee cannot
be transformed into a supervisor merely by investing him
or her with a "title and theoretical power to perform one
or more of the enumerated functions." NL.R.B. v.
Southern Bleachery & Print Works. Inc., 257 F.2d 235, 239
(4th Cir. 1958), cert. denied 359 U.S. 911 (1959). What is
relevant is the actual authority possessed and not the
conclusory assertions of a company's officials. And while
the enumerated powers listed in Section 2(11) of the Act
are to be read in the disjunctive.' the section also "states
the requirement of independence of judgment in the con-
junctive with what goes before." Poultrv Enterprises, Inc.
v. XL.R.B., 216 F.2d 798, 802 (5th Cir. 1954). Thus, the
individual must consistently display true independent
judgment in performing one of the functions in Section
2(11 ) of the Act. The exercise of some supervisory tasks
in a merely "routine," "clerical," "perfunctory," or "spo-
radic" manner does not elevate a rank-and-file employee
into the supervisory ranks. .L.R.B. v. Securit Guard
Service. Inc., 384 F.2d 143, 146-149 (5th Cir. 1967). Nor
will the existence of independent judgment alone suffice;
for "the decisive question is whether [the individual in-
volved] has been found to possess authority to use [his or
her] independent judgment with respect to the exercise
by [him or her] of some one or more of the specific au-
thorities listed in Section 2(11) of the Act." N.L.R.B. v.
BroKwn & Sharpe Mfg. Co., 169 F.2d 331. 334 (Ist Cir.
1948). In short, "some kinship to management, some em-
pathetic relationship between employer and employee
must exist before the latter becomes a supervisor for the
former." ,:L.R.B. v. Security Guard Service. Inc., 384
F.2d at 149.
Applying these principles to the evidence of record
here, I find and conclude that Keller was, at all times
pertinent to this case, an employee and not a supervisor
as claimed. Keller credibly testified that she never hired,
fired, or disciplined employees; that she never recom-
mended such action; that she was never told that she had
such "authority"; that she was never asked to grant em-
ployees ime off, that she never assigned "any work or
overtime to" Metzger: and that she never attended
IF Wst Penn Po.er (o, A I..LR., 317 F 2d 04'03, ' (d (ir
19'4)
383
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"management meetings." Keller explained that she was
receiving $4.57 an hour and $182.70 each week. Metzger
was "paid the same way. " ' When Keller "wanted time
off," she went to Snodgrass, and Snodgrass signed the
timesheets for both Keller and Metzger.
Keller explained that she shared an office with
Metzger; that they each had desks there; that she has
never signed a timesheet; that she was never asked to
grant and she has never granted Metzger time off; that
she never "requested" Metzger to work overtime-"we
went to Mr. Snodgrass and asked him for approval"; that
she "did not review" Metzger's job "performance" and
"did not know" she had such authority; and that she be-
lieved that Snodgrass had in fact "reviewed" Metzger's
work performance. Keller further explained that "if there
was a mistake in the payroll," the people "would come
either to me or Mary Ann" depending upon which one
was available at the time. Keller, as she stated in her affi-
davit and at the hearing, ". . . supervised pieces of paper
. ."-she "really didn't deal with people that much."
Metzger corroborated Keller's testimony with respect
to Keller's nonsupervisory status. Metzger credibly testi-
fied that Snodgrass was her "immediate supervisor"; that
Keller did not "assign [her] work"; that the two workers
"split [the work] up according to [their] abilities"; that
Keller never "reprimanded" her; that Snodgrass signed
her timesheets; that Snodgrass granted her time off; and
that Snodgrass summarily evaluated her work perform-
ance.
Former Assistant Treasurer Snodgrass generally assert-
ed that Keller, in his view, possessed various indicia of
supervisory authority. Snodgrass, however, explained
that the so-called payroll supervisor was the lowest paid
of the six department "supervisors" under his authority;
that there was a period of time when he "watched over-
time [assignments] more closely"; that "they [Keller and
Metzger] came to me [with respect to permission for
time off] more as a courtesy than anything else"; that he
could not "recall any discussions" with Keller pertaining
to Metzger's work performance; that "if they had a prob-
lem where they needed some more punch in getting a
problem solved then they would come to me . . ."; and
that the other five department heads under his control,
unlike Keller, were in the Employer's "exempt payroll."
Thus, Snodgrass added, the other five department heads,
unlike Keller, had "set salaries" and were not paid over-
time.8
' Metzger was paid about 40 less each week than Keller As noted
above, Keller had worked for the Company some I years; Metzger had
worked for the Company about 18 months. Keller also explained that she
never discussed with Snodgrass the subject of Metzger's sages.
s Peter Lupacchino, a tax accountant for the Employer, testified that
he served as "payroll upervisor" prior to Keller's assignment to that job.
At that time, according to Lupacchino, Metzger worked il the payroll
office only 2 or 3 days a week on loan from another department. Lupac-
chino had no other employees il the payroll office. I am not persuaded
here that Lupacchino's earlier limited working relationship with Metzger
in the payroll office sufficiently establishes any supervisory authority in
Keller after she subsequently was assigned that job.
Also see the testimony of Company l'ersonnel Director Jlack Hamptonl
concerning the difference between "exempt" and "non-exenipt" personl-
nel.
Insofar as the testimony of Keller ad Metzger differs from the testi-
mony of Snodgrass and Lupacchino. as recited aboe, I a311 persuaded
In sum, on this record, I find and conclude that Keller
did not possess the authority to use her independent
judgment with respect to the exercise by her of one or
more of indicia of supervisory authority listed in Section
2(11); the title of "payroll supervisor" is not, without
more, determinative of this issue; and here there is no
"kinship to Management" or "empathetic relationship be-
tween employer and employee" so as to regard Keller as
the Employer's "supervisor." Accordingly, since Keller
was an employee when she was terminated and since she
was terminated for attending union meetings, Respondent
thereby violated Section 8(a)(1) and (3) of the Act.9
Counsel for Respondent, in his answer to the com-
plaint, alleges that "Metzger was transferred because Re-
spondent wished to quell rumors that she had disclosed
confidential information to the Union." The credible evi-
dence of record here does not support this assertion.
Indeed, the credible evidence of record establishes that
Metzger was given no "reason" for her transfer; that
management's treatment of Metzger was motivated by
the same antiunion purpose which resulted in the termi-
nation of Keller on that same day; and that Metzger, like
Keller, was being punished for attending union meetings.
Thus, as Snodgrass acknowledged, Metzger was trans-
ferred "because of all the problems that had blown up
over the thing"; "Upper Management was very upset
about . . . the supervisor . . . attending the meetings and
they just wanted the whole thing cleaned up because it
was in the payroll department"; and "I didn't want any-
thing left in the payroll department .. any kind of rem-
nant of this whole thing .... " Elsewhere, Snodgrass
acknowledged that, during his conversation with his su-
perior prior to the April 4 disciplinary action, he ap-
prised his superior that Keller "had been attending
Union meetings" and
. . that was one of the things that really con-
cerned him about it because he was not aware at
that point they had been attending Union meetings
and this was the first thing that really came to his
attention. I told him yes apparently they had been
attending because they told me that .... [Empha-
sis supplied.]
In sum, I find and conclude here that Metzger, like
Keller, was disciplined solely for attending union meet-
ings, in violation of Section 8(a)(1) and (3) of the Act. o
here that Keller and Metzger have more accurately and reliably related
their authority and job duties for the Employer.
9 As noted supra, counsel for Respondent alleges in his answer that
Keller was terminated because she had "disclosed information concerning
Respondent to the Union." The credible evidence of record, as recited
above. including the admissions of Snodgrass, makes it clear that this was
not a reason for Keller's, or for Metzger's, disciplinary action.
"' Counsel for Respondent asserts that Metzger was a "confidential"
employee beyond the protection of the Act. However, the Board has
held that the "mere fact that" a payroll employee "has access to person-
iel records and to raw financial data. which might eventually be used by
the Employer in a more composite form to determine the nature of its
economic package offerings in labor negotiations. is insufficient to consti-
tute her as a confidential employee " Victor Industries Corporation of Cali-
jboria, 215 NLRB 48 (1974). Also see Kleinberg. Kaplan. Wolf. Cohen &
Burnrori. P.C. 253 NLRB 450 (1980). The record here establishes that
Continued
384
BRODART. INC.
In addition, it is settled law that an employer violates
Section 8(a)(1) of the Act by creating among its employ-
ees an impression that their union activities are under
surveillance (see, generally, Brown Manufacturing Corpo-
ration, 235 NLRB 1329, 1331 (1978), and N.L.R.B. v.
Rich's of Plymouth, Inc., 578 F.2d 880 (Ist Cir. 1978));
and by coercively interrogating employees about their
union activities (see, generally, N.L.R.B. v. Camco, Inc.,
340 F.2d 803 (5th Cir. 1965)). And, as the court noted in
Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 99 (7th Cir.
1959):
A violation of Section 8(a)(1) of the Act was com-
plete when the statements were made to prospective
employees . ... No proof of coercive intent is nec-
essary under Section 8(a)(l) of the Act, the test
being "whether the employer engaged in conduct
which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the
Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d 811,
814.
The credible evidence of record shows that Snodgrass
apprised employees Keller and Metzger that "he knew
[they] were attending the Union meetings . . ."; and that
"there was a nasty rumor floating around that . . . some
confidential booklets had been stolen . . ." and the two
employees were being accused of "passing them around
at the [Union] meeting .... " Snodgrass also questioned
the two employees about ". . . what goes on at these
Union meetings?" Snodgrass admittedly disclosed to his
superior the union activities of these two employees. As
Snodgrass testified, ". .. I told him, yes, apparently they
had been attending because they told me that and that
pretty much was it." Employee Keller was summarily
terminated and employee Metzger was summarily trans-
ferred shortly thereafter.
I find and conclude that Snodgrass, by the foregoing
conduct, unlawfully created the impression of surveil-
lance of employee union activities and coercively inter-
rogated the employees. Although the Employer, in fur-
therance of legitimate business objectives, could instruct
employees about the confidentiality of its records and
could take necessary steps to ensure the confidentiality
of such information, it went beyond these legitimate pur-
poses when it told the two union supporters that "he
[Snodgrass] knew [they] were attending the Union meet-
ings . . ." and questioned the employees, "what went on
at the Union meetings?" The two employees were not
given any assurances against reprisal. Indeed, they were
later disciplined for attending union meetings. Such con-
duct tends to impinge upon employee Section 7 rights.
CONCLUSIONS OF LAW
1. The Union is a labor organization as alleged.
2. Respondent is an employer engaged in commerce as
alleged.
Metzger is not such a "confidential" employee. Counsel for Respondent.
in his post-hearing brief, also claims that Keller was a "confidential" em-
ployee. The record here similarly establishes that Keller is not such a
"confidential" employee
3. Respondent violated Section 8(a)(1) and (3) of the
Act by coercively interrogating employees and creating
the impression that their union activities were under sur-
veillance, by discriminatorily discharging employee
Keller, and by discriminatorily transferring employee
Metzger.
4. The unfair labor practices found above affect com-
merce as alleged.
REMEIDY
Having found that Respondent engaged in certain
unfair labor practices, I find it necessary to recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. It has been found that Respondent, in violation of
Section 8(a)(l) and (3) of the Act, unlawfully terminated
employee Keller. It will therefore be recommended that
Respondent offer to employee Keller immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of
earnings suffered by reason of her unlawful termination,
by payment to her of a sum of money equal to that
which she normally would have earned from the date of
Respondent's discrimination to the date of Respondent's
offer of reinstatement, less net earnings during such
period, with backpay and interest thereon to be comput-
ed in the manner prescribed in F. W. Woolworth Compa-
ny,. 90 NLRB 289 (1950), and Florida Steel Corporation,
231 NLRB 651 (1977)." Further, it will be recommend-
ed that Respondent preserve and make available to the
Board, upon request, all payroll records and reports, and
all other records necessary and useful to determine the
amount of backpay due and the rights of reinstatement
under the terms of these recommendations. Respondent
will also be ordered to post the attached notice.
Although I have found that Respondent's transfer of
employee Metzger was also unlawful, the record makes
clear that she suffered no monetary loss as a result of the
transfer. Metzger has since left the Company's employ-
ment and there is no claim of unlawfiLl discharge. Under
the circumstances, in my view, it would not effectuate
the purposes of the Act to recommend make-whole or
restoration of .status quo ante remedial provisions with re-
spect to Metzger.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record of the case, I hereby
issue the following recommended:
ORDER 12
The Respondent, Brodart, Inc., Williamsport, Pennsyl-
vania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
" See, generally. Ioi P/umbing & Heaing Co., 138 NLRB 716 (1962).
* In the event no exceptions are filed as pro.ided hb Sec 102 46 of
the Rules and Regulalions, of the National Labor Relationl, Board, the
findings. conclusions. ind reconmellded Order herein shall, as provided
in Sec It)2 48 of the Rule, anid Regulations, be adopted b, the Board and
become its firdillgs. conclusions. and Order, and all objections thereto
shall be deemed .l aicd for ill purposeys
385
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Coercively interrogating employees about protect-
ed union activities.
(b) Creating among employees the impression that
their union activities are under surveillance.
(c) Discouraging membership in District 65, United
Automobile Workers, or any other labor organization, by
discriminatorily discharging or transferring any of its em-
ployees or in any other manner discriminating against
them with respect to their hire or tenure of employment
or any terms or conditions of employment.
(d) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer employee Carol Keller immediate and full re-
instatement to her former job or to a substantially equiv-
alent position without prejudice to her seniority or other
rights and privileges, and make her whole for the loss of
earnings in the manner set forth in this Decision.
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in this
Decision.
(c) Post at its offices and facility in Williamsport,
Pennsylvania, copies of the attached notice marked "Ap-
pendix."'3 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly
signed by Respondent, shall be posted immediately upon
receipt thereof, in conspicuous places, and be maintained
by it for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that copies of said notices
are not altered, defaced, or covered by any other materi-
al.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
"3 In the event that 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 Relatiotls Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l abor Relations Hoard "
386