Metal Industries, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1523 (N.L.R.B. 1980)

METAL INDUSTRIES, INC. 1523 Metal Industries, Inc. and Sheet Metal Workers In- ternational Association, Local 411, AFL-CIO. Case 12-CA-8643 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On March 24, 1980, Administrative Law Judge Bernard Ries issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. i The General Counsel 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 re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NLRB 544 (1950)., enfd. 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing his findings. 2 Member Truesdale does not rely on the subjective evidence that em- ployees did not see Vice President Rogers making checkmarks, nor the Administrative Law Judge's discussion of the possible effect on the em- ployees of the presence of management officials when the leafletting took place. Rather, he would dismiss the complaint based on Board precedent which establishes that the routine presence of these officials does not con- stitute unlawful surveillance. See, e.g.. Chemtronic.s Inc., 236 NLRB 178 (1978). For this reason, Member Truesdale finds it unnecessary to reach the Administrative Law Judge's discussion of policy regarding the issu- ance of the complaint. Member Penello agrees with the Administrative Law Judge's concern about the wisest use of the Board's limited resources and does not en- dorse the issuance of complaints where the alleged misconduct, even if proven, would not warrant a remedy. See his concurring opinions in United States Postal Service, 248 NLRB 846 (1980); Peoria Journal Star, 242 NLRB 928 (1979); United States Postal Service, 242 NLRB 228 (1979); United Steelworkers of America, AFL-CIO (Bucyrus-Erie Company), 238 NLRB 177 (1978); Peerless Food Products. Inc., 236 NLRB 161 (1978); and note his remarks in Bureau of National Affairs. Inc., 235 NLRB 8, fn. 2 (1978). However, he cannot agree with the Administrative Law Judge that this case falls within that category. The complaint alleged, inter alia, statements by Respondent's plant manager instructing employees to ignore the union leafletters and not to take the leaflets. The Administra- tive Law Judge dismissed this allegation of the complaint based on a credibility resolution, thus finding that the General Counsel failed to meet its burden of proof. Had the General Counsel established that these statements were made, they would have constituted a serious violation of Sec. 8(aHI) of the Act, one which would warrant an appropriate Board remedy. Member Penello continues to believe that the General Counsel should exercise his discretion under Sec. 3(d) of the Act to refuse to issue complaints in trivial cases; prosecution of such cases does not effectively serve the purposes of the Act 251 NLRB No. 201 In adopting the Administrative Law Judge's rec- ommendation that the complaint be dismissed, we do not rely on any information he received during the pretrial, off-the-record discussion. We find that the record evidence clearly warrants dismissal of the complaint. Contrary to our dissenting colleague, we agree with the Administrative Law Judge that the pres- ence of management officials in the employees' parking lot at the time the leafletting took place did not constitute coercive activity. The record is clear that these officials regularly stationed them- selves in the parking lot at the end of the day to bid the employees goodbye and answer any ques- tions they might have, and that this practice was in effect long before there was any evidence of orga- nizational activity. The Board has often held that management officials may observe public union ac- tivity, particularly where such activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do some- thing out of the ordinary. See Chemtronics, Inc., 236 NLRB 178 (1978); G. C. Murphy Company, 216 NLRB 785, fn. 2 (1975); Larand Leisurelies, Inc., 213 NLRB 197, 205 (1974); Tarrant Manufacturing Company, 196 NLRB 794, 799 (1972). Noting par- ticularly Vice President Rogers' conduct, the Ad- ministrative Law Judge found that Rogers ap- peared in the area every afternoon, unless the weather or a meeting prevented him from doing so, and that he regularly carried a clipboard to make notes. The only unusual action Rogers took on the day of the leafletting was to place himself farther away from the employees from where he usually stood; if this change in the routine had any effect on the employees at all, it would have had a lesser impact than Rogers appearing at his usual post near the exit gate. We therefore cannot agree with our dissenting colleague that Respondent's conduct "far exceeded" its usual practice and we affirm the Ad- ministrative Law Judge's finding that it did not constitute coercive activity. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. MEMBER JENKINS, dissenting: I disagree with my colleagues' failure to find that Respondent did not engage in unlawful surveil- lance of its employees' union activities. The record indicates that on May 22, 1979, at the end of a METAL INDUSTRIES. INC. 3 1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shift, the Union distributed handbills to Respond- ent's employees. Three management officials, Presi- dent Walker, Plant Manager Poppleton, and Vice President Rogers, appeared in the parking lot and observed the handbilling. Rogers sat on the trunk of a car, and by his own admission made notes on a clipboard, keeping a record of the number of em- ployees who received handbills. At least two em- ployees handed the literature over to Rogers. The management officials left when the handbilling ended. On the basis of the foregoing conduct, the Ad- ministrative Law Judge and my colleagues dismiss the allegations of unlawful surveillance on the basis that the presence of these management officials was "routine." Assuming the truth of that dubious con- clusion, Respondent's actions far exceeded a casual observation or brief inspection of the handbilling activities, actions which are not by themselves un- lawful surveillance. ITT Automotive Electrical Prod- ucts, 231 NLRB 878 (1977). See also Ravenswood Electronics Corporation, 232 NLRB 609, 612-613 (1977). Here, Respondent's officials remained in the area until the handbilling ceased, observing what tran- spired and which employees accepted handbills. There is no plausible explanation why such an ex- tensive observation by top management officials was necessary. See Woodland Molded Plastics Corp., 250 NLRB No. 20 (1980). In any event, there is no lawful explanation for Rogers' conduct in stationing himself at a nearby location, observing the union activities, and noting the number of employees who received handbills. This conduct has the tendency of creating in the minds of the employees, the impression their ac- tions in receiving or refusing the handbills are being recorded. There is no other reason for Rogers' conduct, which is clearly violative of Sec- tion 8(a)(l) of the Act. J.P. Stevens and Company, Inc., 247 NLRB No. 44 (1980). My colleagues conclude that Rogers regularly stations himself in the parking lot to bid employees goodbye and answer any questions they might have. It is difficult to perceive how Rogers' ac- tions, which took place 10 yards from the exit gate, could possibly be in furtherance of Respondent's so-called "open communications" policy. DECISION BERNARD RIES, Administrative Law Judge: This case was heard in Tampa, Florida, on January 9, 1980. The complaint alleges that agents of Respondent violated Section 8(a)(1) of the Act on May 22, 1979, by engaging in surveillance of the union activities of employees and by telling employees that they need not and should not accept union handbills. Briefs have been received from the parties. Having considered the entire record, the briefs, and my recollec- tion of the demeanor of the witnesses, I make the follow- ing: I FINDINGS OF FACT Respondent Metal Industries, Inc., is engaged in the manufacture of air distribution systems in Clearwater, Florida, where it employs about 400 workers. It would appear that none of the employees are represented by a labor organization. Respondent's first shift ends at 4:30 p.m., and its second shift begins at 5 p.m. On May 22, 1979, A. Q. Mooneyhan, an International Organizer for the Charging Party, and two other union representatives, handed out organizational literature and authorization cards at the exit gate of Respondent's plant, beginning about 4:30 p.m. For the most part, the handbilling was directed at the occupants of vehicles leaving the first shift. Mooneyhan testified that shortly after the handbilling had begun, he noticed three individuals standing nearby. One of them, later identified to him as Respondent's plant manager, Jay Poppleton, told Mooneyhan to stay beyond the property line. Poppleton then assertedly turned to the driver of an exiting car and said, referring to the leaflet, "You don't have to take that. just ignore him." According to Mooneyhan, Poppleton then moved between two lines of egressing cars and made one similar remark to other employees. Poppleton stayed in the lot for the remainder of the 15 minutes or so that the Union agents were there. 2 Two other management officials were also present in the area at this time. One was Respondent's president, J. T. Walker. The other was Thomas Rogers, the vice president for industrial relations. Rogers conceded that when he arrived in the parking lot, with clipboard, paper, and pencil in hand, he sat on the back of a nearby car, about 30 feet from where the leaflets were being passed out, and made checkmarks on his pad as employ- ees accepted the leaflets. He assertedly recorded 26 in- stances in which employees did so. 3 Rogers testified that it was his practice of the preced- ing 8-10 years to be present in the parking area at shift change, clipboard at the ready, in order to communicate with the departing employees, and allow them to have access to him, about any questions, grievances, and prob- lems. According to Rogers, he did this "normally," unless the weather or the demands of business interfered. Poppleton testified to a similar practice of some 4-5 The complaint alleges, and Respondent admits, facts and legal con- clusions which indicate that it is appropriate for the Board to exercise jurisdiction in this matter. The parties also agree that the Charging Party, Sheet Metal Workers International Association, Local 411, AFL-CIO, is a labor organization within the meaning of the statute. 2 After Mooneyhan heard the remarks a second time, he stopped hand- billing, went to his car to get his camera, and took some pictures of the company officials which are in evidence. He testified that, after he left the immediate area, he saw Poppleton bending toward the exiting cars. talking to their occupants. I Rogers and Poppleton also testified that it was Rogers, not Popple- ton, who told the union agent to stay off Respondent's property. The issue is of no moment except as it bears upon the accuracy of Mooney- han's memory. METAL INDUSTRIES, INC. 1 525 years standing, except with less frequency of incidence: "[t]wo to three times a week." Poppleton also testified that Walker appears in the lot "[p]eriodically": [s]ometimes he won't come for a week; other times I'll see him two or three times a week."4 Poppleton and Rogers conceded that, prior to going into the yard, they had heard from an employee that leafleting was being done. While they both "suspected" that it might be a union come to call, their testimony was to the effect that their joint arrival on the parking lot was pursuant to their normal practice. Poppleton denied that he made the remarks attributed to him by Mooneyhan, saying that he only exchanged common courtesies with the employees. Mooneyhan testified that he had surveyed the plant at shift change on three days within the week preceding the handout of May 22. He stated that on none of the three occasions did he see any of the management officials in the exit area. Patricia Snapp, a supervisor, testified for Respondent that during her 5 years on the first shift, she has seen Rogers at the gate, with his clipboard, "[albout every day unless it rains."5 She was not asked about Poppleton's or Walker's practice in this respect. Ander- son Marston, a 7-year employee, 6 testified that he had seen Rogers at the exit some 4 days every week, Popple- ton 2 or 3 times a week, and Walker occasionally, on the days Marston would leave at 4:30 p.m. Rogers "[t]alks to us, waves to us, asks us how we are doing," and Popple- ton and Walker are similarly cordial. The complaint alleges that both Rogers and Poppleton violated the Act by telling employees'that they did not need to take union handbills and to ignore the hand- billers." The evidence adduced by General Counsel attri- butes such conduct only to Poppleton. The conflict in testimony between Mooneyhan and Poppleton on this issue is not easily resolved. Both were extremely impres- sive witnesses. Arguably tending to tip the balance in General Counsel's favor was the testimony of employee Marston. In response to a question by Respondent's counsel as to whether any management representative said "anything that you heard on that day about taking or not taking a handbill," Marston stated, "They said we could take them if we wanted to or-somebody rolled up their windshield if he didn't want to-rolled up the window if he didn't want to take one." In subsequent testimony, Marston said that he did not in fact know what day these statements were made, and that it "could have been" in a group meeting in the plant. While Marston's initial testimony in this regard casts some doubt upon Poppleton's denial, I am inclined to give Poppleton the benefit of that doubt. It may well have been that Marston was honestly confused by the question. His first response, referring to "They" having told the employees something, does not correspond to Mooneyhan's testimony, nor does the reference to "roll- ing up the window" if an employee did not want a hand- bill; he might indeed have been describing some other occasion. In other testimony, Marston said that he did not recall Poppleton being present on May 22, a position I Walker did not testify. "[H}e usually bids us goodbye, and if we have any questions." Marston "run[s] the Receiving Department," but does not have the authority to hire and fire. which is inherently inconsistent with an intention to assert that Poppleton said something to him on that day. I note further that Marston in fact took a handbill on May 22, which would suggest that he was not concerned about the effect of doing so. As I have indicated above, Mooneyhan and Poppleton were both excellent and consistent witnesses. I have a hunch that Mooneyhan would not have fabricated his testimony, but it is nothing more than that. The brevity of my exposure to these very credible men makes it im- possible for me to conclude with any conviction that either was lying. The answer may be that neither was deliberately prevaricating. Poppleton testified that the area is "extremely busy . . . a lot of trucks are passing by, there's a lot of horns honking, people are excited that they're getting out of work, there's motorcycles, it's noisy." It is possible that, given these conditions, Moon- eyhan simply misunderstood some innocuous remarks made by Poppleton. On this state of record, and my recollection of the wit- nesses, I am not sufficiently convinced that the asserted statements were made, and I therefore recommend dis- missal of this allegation of the complaint. The remaining allegation is that Walker, Rogers, and Poppleton 'unlawfully "engaged in the surveillance of its employees' union activities." I infer that this count of the complaint rests essentially upon General Counsel's belief that the presence of the three managers in the parking area at the time in question was an extraordinary occur- rence. At the outset, I accept Respondent's contention that it was not unusual for the three officials to be in the exit area during shift change. The testimony of Rogers and Poppleton to this effect'7 was bolstered by Marston and, as far as I am concerned, confirmed beyond question (at least as to Rogers) by the very believable Patricia Snapp. While I do not doubt the testimony of Mooneyhan that he had surveyed the area on three recent occasions without seeing any manage- ment officials present, that is not necessarily inconsistent with the testimony of Rogers that he attends at shift change unless the weather is inclement or business de- mands dictate otherwise; either reason, or both, could have explained the absence of Rogers on the 3 occasions to which Mooneyhan referred. 8 Similarly, since Popple- ton is present only two or three times a week, it seems quite possible that he might not have been there when Mooneyhan was." Given the conclusion that it is a reasonably routine thing for the three members of management to be pres- ent in the area at shift change, General Counsel's burden of proving that they all engaged in unlawful "surveil- lance" becomes a heavy one. If it is not extraordinary for them to be there, it is not easy to say that they were spying on the employees by being present. One aspect of 7 I should point out here that Rogers, while not an unimpressive wit- ness, was not as convincing as Poppleton 8 Rogers could not recall his schedule in the week preceding the hand- billing. 9 The same speculation may be made about Mooneyhan's rebuttal testi- mony concerning his surveillance of the plant on perhaps three or four occasions in 1974 METAL INDUSTRIES, INC. 5 1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conduct shown might, however, arguably constitute a separate unfair labor practice. When Rogers arrived in the area, he leaned against a car some 30 feet from the exit and, according to his un- refuted testimony, made checkmarks on paper affixed to his clipboard. Rogers did this, he said, to determine the degree of interest in the union leaflets among the em- ployees.10 It might be said that this conduct was, while not the unlawful "surveillance" alleged in the complaint, nonetheless a closely related act having a tendency to in- timidate the departing employees into not accepting the proffered handbills. Larand Leisurelies, Inc., 213 NLRB 197 (1974), and Tarrant Manufacturing Company, 196 NLRB 794 (1972), a case cited in Larand, may be argued, as Respondent does, to constitute controlling authority here. In Tarrant, the company vice president, noticing the distribution of handbills at the gate, left the plant and sat in a company car on the lot to observe the incident. Without comment by the Board panel, the Trial Examiner recommended dismissal of the surveillance allegation, holding (196 NLRB at 799): The notion that it is unlawful for a representative of management to station himself at a point on man- agement's property to observe what is taking place at the plant gate is too absurd to warrant comment. If a union wishes to organize in public it cannot demand that management must hide. In Larand, the Administrative Law Judge quoted the foregoing passage from Tarrant and applied it to a case where, on 15 or 20 occasions, members of the supervi- sory staff observed handbilling, and the personnel man- ager conceded that he "made it a point to watch the handbilling" because he thought some incident might take place (an explanation viewed by the Administrative Law Judge as "singularly lacking in candor"). 213 NLRB at 205. As I read these cases, they stand for the proposition that representatives of an employer may, without violat- ing the Act, depart from their normal activities in order to observe union handbilling near the property, despite the possible tendency of such activity to suggest to em- ployees an acute interest in the identity of those receiv- ing literature, and without proffering any particular justi- fication for doing so. Thus, the employer may "station himself" on the property in order to observe the activity, or he may "make a point to watch the handbilling."" The underlying rationale for these cases might be that the coercive effect of supervisory observation of gate handbilling is diffused by the fact that the purpose of the conduct, as perceived by employees, may seem ambigu- ous. While employees could regard the observation as an 10 Rogers said that he only "suspected" that the handout was union literature at first; soon thereafter, two employees individually came up to him and supplied him with copies. Since he began making his checkmarks immediately upon arrival, however, one would have to suppose that Rogers' "suspicion" was based on knowledge imparted by the employee who had admittedly told Poppleton, before he and Rogers left the plant, that "somebody was handing out leaflets" '' Larand has been cited with approval in Chemironics, Inc., 236 NLRB 178 (1978), and Porta Systems Corporation, 238 NLRB 192 (1978). effort to identify or intimidate those who are potentially interested in unionization, they might equally consider it as nothing more than an exercise of the employer's pre- rogative to assure the maintenance of order and respect for his property rights. The conduct of Rogers might be thought of as less uncertain in intent. A supervisor who makes marks on paper during the course of such obser- vation perhaps more clearly conveys to employees the notion that the purpose of the attention is identification and intimidation, pure and simple. The issue is, however, not so clear on this record. It was, I have found, customary for Rogers to be present in the area, clipboard in hand, and the employees would ac- cordingly not be startled by his presence. Instead of standing near the line of exiting traffic, Rogers retired to some 10 yards away, and, so he testified, made 26 check- marks on a piece of paper in a 15-minute period. It does not take very long to make a checkmark, and there is no testimony that he made the marks in a conspicuous manner or that any employees noticed him doing so. Moreover, if an employee did see Rogers making a checkmark, he would recognize that a brief stroke of the pencil is not the writing down of a name. Although Rogers' professed motive for keeping score-to assess the interest in the Union-is not compellingly convinc- ing, I would not reject it out of hand; it may be argued that if he had been interested only in intimidation, he would have gone about this business at a more noticeable location. He testified that he is "usually . . . closer to the people."' 2 In my view, the closeness of the question lends added force to my belief that little purpose would be served by issuance of a remedial order in this case. At the hearing, I developed serious misgivings about the wisdom of liti- gating this complaint in the first instance. The Union is not engaged in an effort to organize Respondent, a fact made especially clear during the off- the - record discus- sion preceding the hearing. The only pass the Union has made in that direction, aside from some distribution of 5 years before, was in handing out literature between 4:30 and 4:45 p.m. on May 22, 1969. At best, from General Counsel's standpoint, litigation would have resulted in a finding that in those few minutes on that date, Respond- ent's officials spontaneously engaged in some incautious, but relatively insignificant, behavior. I do not think this is the stuff of which unfair labor practice proceedings should be made. The cost of the litigation included transporting an administrative law judge from Washington to Florida; the day spent in trial by him and the lawyer for the General Counsel; tran- script and associated expenses; and further time and money expended in preparation and publication of Gen- eral Counsel's brief and this decision. In a context in which the Union is not actively attempting to represent the employees, vindication of Section 7 rights becomes something of an abstract exercise. Discretion might have advised that issuance and trial of the complaint did not 12 This is not to say that proof of actual unlawful motive is a necessary prerequisite to finding a violation in cases such as this. The law will usu- ally hold individuals to have intended the foreseeable consequences of their acts. METAL INDUSTRIES, INC. 1.527 rebound to the greater good. Considering the present budgetary limitations and manpower constraints of this agency and the Government, it would seem appropriate to conclude in certain circumstances that, even despite the possible existence of prosecutable violations, the game is not worth the candle.13 At this point, I have determined on the merits that I cannot find that Poppleton violated the Act as alleged, that I cannot conclude that the three managers, simply by being present, were engaging in surveillance, and that the question of whether Rogers violated the Act by making 26 checkmarks (apparently not envisioned by the complaint as a separate violation but nonetheless suffi- ciently established as an evidentiary matter to warrant being considered) is a close one which probably should be resolved in Respondent's favor. If I were to conclude that a violation occurred, it would, I think, have to be considered marginal in character. There is no showing that any employee noticed what Rogers was doing.14 His behavior was plainly an uncalculated, momentary re- action to a sudden and unexpected event; the Union came and went like a spring shower. There is no indica- tion that Respondent is inclined to violate the labor laws, although its ears rather obviously perk up at the rustle of a union authorization card. 13 It is hard to fault the Regional Office, however; as I understand the General Counsel's longstanding policy, it is to issue and prosecute com- plaints whenever they are deemed to he substantively meritorious, with- out regard to other considerations. In the present case, it was evidently the belief and pnncipal theory of the Region, as to the surveillance count, that it was unprecedented for the three officials to be present during the shift change; the extent to which that policy was investigated, apart from Mooneyhan's sketchy knowledge of the issue, is undisclosed It might be said, however, that even if General Counsel could have es- tablished that such presence was unprecedented, the Larnd line of cases would presumably not have made it unlawful Even if I were ultimately to find that a violation did occur, I would not recommend that the power and au- thority of the Federal government be further brought to bear on Respondent by issuance of a formal remedial order and such accompanying requirements as the post- ing of a notice. Any lesson which Respondent needs has, I feel sure, already been learned. In these circumstances, therefore, I shall simply recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Respondent Metal Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. It would not effectuate the purposes of the Act to conclude that Respondent has violated the Act as alleged in the complaint. Upon the foregoing findings of fact and conclusions of law, I issue the following recommended: ORDER l S The complaint is hereby dismissed. 4 Although Mooneyhan testified that it appeared to him that "a lot of people" began refusing to accept the literature after the management offi- cials arrived, his involvement with other activities at that time suggests that his testimony is necessarily less than definitive '- In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall he deemed waived for all purposes METAL INDUSTRIES, INC.