National Sea Products, Incorporated

NATIONAL SEA PRODUCTS National Sea Products, Incorporated and Local 385, United Food & Commercial Workers Interna- tional Union, AFL-CIO. Case I-CA-17342 February 8, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATI R AND MEMBERS FANNING AND HUNTER On September 16, 1981, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision and in opposition to the General Counsel's exceptions. 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. 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. I The General Counsel has excepted to certairn credibilly findings made by the Adminisiratise Law Judge. It is Ihe Board's established policy not to overrulc aIn administrative las Judge's resolulionr with re- spect to credihilily uniles, he clear preponderance of all of the rclsanl evidence convinces us that the resolutioons are incorrecl Slandard Dr, Wall Producti. Inc. 91 NI. Rl3 544 (195()),. nfd.188 F 2d 362 (3d Cir 1951). We have carefully exanmined the record and find no basis for re- versing his findings 2 In adopting the Administratie I ass Judge's recommendation to dis- miss the complaint, ue further note that the credited esidence indicates Union Representative Stephen Buziell consented in adsance to Respond- ent's providing an escort for his April 2, 1981, tour of tihe plant DECISION STAI EMEN OF THE CASIE FRANK H. IrIKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on April 2, and an amended charge was filed on May 1. 1980. A complaint issued on July 29, 1980, and the com- plaint was later amended at the hearing. The hearing was conducted on March 30 and August 12, 1981, in Rock- land and Portland, Maine. Briefly, General Counsel con- tends that National Sea Products, Incorporated (Re- spondent), violated Section 8(a)(1) and (5) of the Nation- al Labor Relations Act, as amended, by unilaterally changing the "plant visits" provision in its collective-bar- gaining agreement with Local 385, United Food & Com- mercial Workers International Union, AFL-CIO (the Union), and also by engaging in related coercive con- duct. Respondent denies that it has violated the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs of counsel, I make the following find- ings of fact and conclusions of law: FINDInNGS O FACT The Union is admittedly a labor organization within the meaning of Section 2(5) the Act. Respondent is ad- mittedly an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is, and has been for a number of years, the bar- gaining agent of Respondent's production and mainte- nance workers at its plant in Rockland, Maine, where it is engaged in the processing, sale, and distribution of fish and related products.' Respondent and the Union are, and have been for many years, parties to a collective-bar- gaining agreement, which provides (G.C. Exh. 2, p. 8): Plant Visits by Union Representative A duly authorized representative of the Union shall be permitted to visit the various plant oper- ations covered by this Agreement for the purpose of observing working conditions and shall also be permitted to check payroll records to see that this Agreement is fully carried out. It is agreed that the Union Representative shall first announce his pres- ence to the Manager of the Plant or his representa- tive and advise as to the reason of his visit. The Union further agrees that his visit shall not interfere with production. General Counsel alleges in his complaint that Respond- ent, on or about April 1, 1980, "unilaterally changed the contract provision . . . by restricting access to the plant to certain times and under conditions of escort" and, in addition, on or about April 2, 1980, "had Union repre- sentative Stephen Buzzell arrested by police in the pres- ence of employee-members of the Union because he sought access to the plant to enforce provisions of the applicable collective bargaining agreement." The evi- dence is summarized below. Barbara Parmelee, personnel manager for Respondent, testified that on April 1, 1980, Union Representative Ste- phen Buzzell telephoned her at the plant. She was away from her desk and returned his telephone call about 3:30 p.m. that same day. Parmelee recalled that Buzzell wanted to visit the plant at 6 a.m. on the following day April 2. Parmelee noted: "I believe he said specifically he wanted to visit to learn about the job that people per- fiormed so he could better represent the people." Parme- le then apprised Buzzell that she would "be getting R ponldr nt il in is alls r dnmili in tr ahu. that the Inion isr he h;.r- gainling agentl f it, ln mphlosecs nd 1to tihe ppropriatt'ics {if the unll is alleged ill ht r c.mplilinl 260 NLRB No. 5 3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back in touch with him." Her next telephone conversa- tion with Buzzell was shortly after 5 p.m. on that same day. She recalled this conversation, as follows: I indicated that he was welcome to visit the plant, but we would be happy to provide an escort for him so that he could in fact achieve his purpose to learn about the job. . . [He] indicated that his inten- tion was to arrive at 6, to spend the day on the floor of the plant, that if we wanted to provide an escort that was fine, but that was still his intention to be there at 6 and to spend the day on the floor. Parmelee explained to Buzzell in this conversation that she could not "authorize" his visit to start at 6 a.m. and she would have to "get back to" him. Parmelee, in a later telephone conversation with Buz- zell on April 1, "did indicate that he [Buzzell] was going to have to have an escort and we could provide that at 8:30." Parmelee also telephoned Buzzell subsequently on that same day. Parmelee testified that, on this occasion, she indicated that he (Buzzell) was not authorized to enter the plant at 6 p.m., that if he wished to tour the plant on (April 2), that he was to go to General Manager Michael Smith's office at 8:30 a.m., when Smith would be free and "we would arrange for Buzzell to tour the plant and learn about the job." Parmelee further testified that: Mr. Buzzell indicated that it was still his intention to be there at 6 in the morning and he said: "if you don't like that, you can have me arrested." I said, "my understanding is that if you show up at 6 tomorrow' morning and attempt to enter the plant, that's exactly what will happen." Parmelee also testified that Respondent and the Union have been parties to collective-bargaining agreements for at least 15 years; that prior to this particular incident no union representative had ever been denied the right to visit the plant; that during late 1979 there was a change in the union leadership; that Buzzell then became the new union representative; and that Buzzell in fact had visited the plant on at least one occasion shortly after be- coming the union representative. Parmelee noted that during Buzzell's earlier visit, Buzzell had "interfered with production in the plant .... He struck up a con- versation with a production worker who, at that time, . . .stopped doing her job to talk; . . . . We lost prod- uct with product damage." Parmelee reminded Buzzell of this earlier incident during her April 1 telephone conversation. She explained "that one of the reasons that we wanted him to have an escort was that he had interfered with production during the prior visit." In addition, Parmelee testified that: Buzzell's request was made on April I for April 2, and we offered to provide an escort because we felt it would be useful to him in learning about the jobs. He could not really learn about them very much just by walking around, and indeed if he were to walk around and try to find out from the employees who were working at the time, he could again in- terfere with production. Parmelee, as she testified, explained this to Buzzell. She invited him to be there at 8:30 a.m. on April 2, and he "said he would be at the plant at 6 . . . we could have him arrested if we wanted to." Parmelee could recall no prior union visitation to the plant before 8 or 8:30 in the morning. 2 Michael Smith, general manager of Respondent's plant, testified that he "was told that Mr. Buzzell wanted to come in" and visit the plant on April 2 at 6 a.m. "to be educated"; "he was new"; and "he wanted to learn how it went" for future negotiations and grievance pro- ceedings. Smith decided "to have people" available to escort Buzzell in order "to tell him what was going on"-"he couldn't learn anything if he just walked around." Consequently, Smith authorized Buzzell to be there at 8:30 a.m. No union agent had ever requested to be there at 6 a.m. and, as Smith further explained, "the only thing conveyed to me was that Mr. Buzzell wanted to come in on a learning experience." At no time did Buzzell notify Smith that Buzzell wanted to be there at 6 a.m. because "he wanted to see the start-up operation because he had problems." Fur- ther, Smith also testified that if Buzzell had stated "that he wanted to come in because there was a problem re- garding start up time at 6 a.m.," authorization to enter at that time would have been granted. And, Smith ex- plained that if Buzzell had "indicated that there was a particular problem at a particular time," he would have been permitted to enter the plant at the time." 3 Stephen Buzzell testified that he was elected to union office in January 1980: that his duties included enforcing the collective-bargaining contract; that shortly thereafter he visited the plant without escort although the chief ste- ward toured the plant with him; and that he also toured the plant on a number of other occasions prior to the April 2 incident. Buzzell claimed that "people [employ- ees] were questioning the start-up time" at the plant- "they were being forced to start earlier" than "they should have" and, consequently, Buzzell wanted to tour i P'roductionl Manlager Barbara McCleanr recalled how Buzzell had vis- ited the plant prior to the April 2 incident and, on that occasion, started "talking ,ith tw.o .of the packers .on the line" resulting in the loss of product :' I)avid Beaster. chief engineer and security officer fior Respondent, testified that he had been instructed by General Manager Smith that Buz- ,ell "does not ha'e pernission to enter the building;" Beaster so in- formed Hu/zell at 6 a m on April 2 and after Buzzell insisted on coming into the building. Beaster called the police who arrested Buzzeil. Beaster then heard Buzzell yell to the assembled employees: "See what kind of f king Comnpany you're working for." Iarr) Davlis, general foreman for the Company, testified that Smith had i.ltrutced himi to take Buzzell on a tiur of the plant on April 2 "to infirm IHBuzzell] or to educate him as to the type of work we did"; Smith in fact tlok Buzzell oln such a tour on April 2 after Buzzell was released from jail that morning; and Buzzell. during his tour. raised his hands over his head id said, "We shall overcome brothers and sisters " Earlier that morninrig when tBuzzell waas arrested by the local police. he told the as- sembled sworkers: "See hat kind iof f king people yiiu wvork for " 4 NATIONAL SEA PRODUCTS the plant about 6 a.m. "to find out for" himself. Buzzell. as he further testified, spoke on the telephone with Com- pany Representative Parmelee on April 1. He recalled: "I just wanted to let her know that I was going to be at the plant at 6 a.m. on the following day." Buzzell testified that Parmelee telephoned him later that same day, and: [S]he wanted to know the reason whNo I wanlted to be in there at 6 in the morning, and I told her that because of the many problems that we've had in the plant and the many grievances that were pending I thought it was appropriate to be in there early in the morning to find out Just what's happen- ing in the plant, and also being a new business agent I would like to familiarize myself with the different positions and the jobs in the plant. Parmelee then replied: "[W]e just couldn't provide some- body to escort you through the plant at that time." Buz- zell asserted that "I didn't need an escort . . . the Com- pany hadn't provided an escort in the past." Buzzell claimed that Parmelee had informed him on April I that, "if I arrived at the plant at 6 1 would be removed bodily from the plant." Buzzell was in fact arrested on April 2 after he persisted in entering the plant at 6 a.m. After Buzzell was released by the police, he returned to the plant, about 8 or 9 a.m., and toured the facility wvithout incident. 4 Buzzell could not remember Parmelee mentioning at anytime about his interfering with production during an earlier tour of the plant Buzzell, in restating the reasons given to Parmelee on April I for his 6 a.m. visit, testi- fied: To observe the working conditions in the plant, fa- miliarize myself. The first two conversations I had with her was, I mentioned, to familiarize myself with the operation of the plant because I was a new business agent. Buzzell later added: "And I had many pending griev- ances." He admittedly never told Parmelee about any "problem with start-up time." He admittedly did not pro- vide management with any "specific or special reason" why he had to be present at 6 a.m. Buzzell also acknowl- edged that no grievance was ever filed regarding this al- leged startup problem. Buzzell claimed that it was cor- rected by Respondent without the Union ever notifying it about the problem. Buzzell never told them what the problem was.5 Buzzell, in a later conversation with Smith. vas assertedlt told by Smith "He was the boss there and he felt that I couldn't iiat the plant unless I was gi.en permission by him " Buzzcll insisted that he could siti "at any time" s Union Rcpresentati'e Richard Taylor testified that Smith told him, following the ahose incident. "I run this plant and I sill tell youl suhen you can come in and how long you call sta " Also see the testirl l"l Iof Union Steward Mary Dos. Employee Nancy Philip claimed that Huzzell tiold her that he ulas at the plant on April 2 "to obser'e starting times" and "he haid been told of numerous complaints " Philip never obserecd a union represeiinati, e .isit the plant at 6 a m Philip did not knowt if nmanagemen t "ia s al.are lf the alleged reason for Buzzell's sisit I credit the testimony of Parmelee, McClean, Smith, Beaster, and Davis as recited supra. They impressed me as trustworthy and credible witnesses. On the other hand, I was not impressed with the testimony of Buzzell, Taylor, Dow, and Philip. Insofar as the testimony of Parmelee, McClean, Smith, Beaster, and Davis conflicts with the testimony of Buzzell, Taylor, Dow, and Philip, I find here that testimony of the former witnesses is more complete, detailed, and reliable. In particular, I find here that Parmelee and Smith have truthfully and accu- rately related the sequence culminating in the April 2 in- cident. Buzzell was, at times, an argumentative, vague, and evasive witness. Discussion It is settled law that "an employer acts in derogation of its bargaining obligation under Section 8(d) and vio- lates Section 8(a)(5) when he unilaterally modifies con- tractual terms or conditions of employment during the effective period of a contract." See Boyer Bros., Inc., 217 NLRB 342, 344 (1975). In Boyer, the employer unilateral- ly modified that portion of the "plant visitation" contrac- tual provision "by eliminating the word reasonable and adding the words after a grievance has been filed and . . . reduced to writing . . . and after it reaches the third step of the grievance procedure...." [Emphasis supplied.] Also see Precision Anodizing & Plating, Inc., 244 NLRB 846, 855-857 (1979). However, as the Board explained in Peerless Food Products, Inc., 236 NLRB 161 (1978): But not every unilateral change in work, or in this case access, rules constitutes a breach of the bargaining obligation. The change unilaterally im- posed must, initially, amount to "a material, substan- tial, and a significant" one, Rust Craft Broadcasting of.Aeuw oYrk. Inc., 225 NLRB 327 (1976), and we do not believe the access limitations imposed here amount to that. From the record, including Re- spondent's representations on the brief, the net effect of the change in policy is to remove Jacka's former "right" to engage unit employees in conver- sations on the production floor when those conver- sations are unrelated to contract matters. While we do not minimize the value of employee access to union business representatives, the change effected here (which does not apply to the job steward) does not materially, substantially, or significantly reduce that value. We shall, therefore, dismiss the com- plaint. Applying these principles to the credited evidence of record here, I find and conclude that Respondent, by its conduct on April 1 and 2, 1980, did not act in derogation of its bargaining obligation, by unilaterally imposing a material, substantial, and significant change in its con- tractual union access clause. The pertinent contractual language permits such access "for the purpose of observ- ing working conditions" and requires the union repre- sentative to "first announce his presence" to management and also "the reason of his visit." The union represen'a- tive "shall not interfere with production." 5 I)ECISIO)NS ()O NATIONAI. IAI3()R RFLATIONS 3()ARD Here, as Personnel Manager Parmelee credibly testi- fied, Union Representative Buzzell "wanted to visit" the plant on April 2 "to learn about the job that people per- formed so he could better represent the people." Like- wise, General Manager Davis, as he credibly testified. was similarly led to believe "that Buzzell wanted to come in on a learning experience" since "he was new." Buzzell did not apprise management that there was a particular problem which could only be observed at cer- tain hours. Consequently, management informed Buzzell that it would "provide an escort" during his tour "be- cause . . . it would be useful to him in learning about the jobs," and "he couldn't really learn about them very much just by walking around." Management also noted that Buzzell, in the past, had interfered with production during a tour and, by providing an escort, he would not have to interfere with the employees on the processing line. However, as management explained, such an escort could not be made available until about 8:3() a.m. on April 2. Buzzell insisted on being allowed to tour the plant at 6 a.m. that day. Union representatives in the past had never toured the plant at this early hour. Buzzell. as found supra, withheld from Respondent any specific or adequate explanation as to why he had to be in the plant at 6 a.m. Consequently, management refused to let Buz- zell tour at will at 6 a.m. and Buzzell was, as discussed above, arrested. Following his release, Buzzell toured the plant without incident. As for Buzzell's alleged special reason for demanding his 6 a.m. visit, admittedly never relayed to management, the "problem was corrected" by Respondent without union action. Under all these cir- cumstances, I do not find Respondent's conduct to be a material, substantial, and significant change in the access clause. I credit Manager Smith's statement that had Buz- zell informed management of a reason why he had to be at the plant at 6 a.m., this isolated incident in the long bargaining relationship of the parties would not have oc- curred. I. therefore, would dismiss this complaint.6 CONCI UtSIONS 01 LAWx 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the mean- ing of the Act. 3. General Counsel has failed to establish by a prepon- derance of the evidence that Respondent violated Sec- tion 8(a)(l) and (5) of the Act as alleged. 4. The complaint will therefore be dismissed in its en- tirety. ORDER7 I hereby recommend that the complaint herein be dis- missed in its entirety. ; Respondenl, under these circumstanlces. did not violale Sec. 8(a)4 I hy seeking the assistance .of l}ocal police, as alleged. 7 In the e\.ent ino exceptioins are filed as provided by Sec. 1()2 46 of the Rules anld Regulations (of the National Iabor Relations Hoard, the find- rigs, coiIclulons, and rccoinlmended Order herein shall, as provided in Sec 1(12 48 of the Rules and Regulations. he adopted by the Board and beclome its findings, conclusions. and Order, and all objections thereto shall be deemed ,alved fo'r all purposes. 6