Six Flags Over Mid-America, Inc.

SIX iI (;S ()\II:R MII)-AMI:RI(A. IN( Six Flags Over Mid-America, Inc. ad International Union, United Plant Guard Workers of America (UPGWA). Case 14-CA-12902 October 24, 1980) SUPPLEMENTAL DECISION ANI) ORDER 13 CAIRMA1N F\NNIN(6 NIl lBEIltRS JINKINS A.\NI) ZIMMIRM \N On August 19, 1980, Administrative Law Judge Claude R. Wolfe issued the attached Supplemental Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief, and thc Charging Party filed a brief supporting the Admin- istrative Law Judge's Supplemental D)ecision. 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 panrel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings, conclusions, and recommendations of the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby reaffirms its overruling of Re- spondent's objections to the March 15, 1979, elec- tion in Case 14-RC-8812 and the certification of International Union, United Plant Guard Workers of America (UPGWA), as the representative of the employees in the appropriate unit; and orders that the Respondent take the action set forth in the De- cision and Order previously issued herein on De- cember 3, 1979, reported at 246 NLRB No. 102. 1 he toa rd' , original )ecislon and Order in this prccedl ig is rpert- ed a 246 NI RH No 11)2 ( 1'7C 1 SUPPLEMENTAL DECISION Si \AITlI-Nt OF 'ItII CASI CI.AUI( R. WOI.FF. Administrative Law Judge: O()n December 3, 1979, the oard issued its Decision and Order' in this proceeding finding Respondent Six Flags Over Mid-America, Inc., violated Section 8(a)(5) and (1) of the Act by refusing to bargain with International Union, United Plant Guard Workers of America (UPGWA), herein called the Union, after a Decision and Certification of Representative issued by the Board on July 25, 1979,2 wherein the Board adopted the Regional Director's findings and recommendations overruling Re- 246 NI R No 102 2 Not rprled in soilnenC s, ,f t;lrd i)ecislillis 253 NLRB No. 13 sporndetl's objections t cotiduc affecting te lection results in Case 14 RC-8812. andl issued a Certification of Representative to the Union colring tuiit of Respond- ent' sccirity guards. After the issuance of the oard's I)cCnl her 3, lq79, Decision arnd ()rder, Respondent peti- tioIed the tUnited States Court of Appeals for tilhe ighth Circiii for rc xisNe ()n March 28, 198(), the oard rqucstcd the court to rentllad this case for rcconsideration, The coutrt ranlted tile oard's request and, on April 23. 1980, issued its order rremni;ding the case to the Board "for tle liniited purpos of reconlideritllg its decision oln , hetlher the Iieul- tra;lit of the Hoard ;1s Inpaired and s htlther there v;as a;1 resultinig impact on the election." ()n June 23. 198(). the (iclleral Colllsel Illov(ed tile Board t reopen the record to addnie newly discovered c iduclce the Hoard. on July 3 19X(), granted the (ieneral Couisel ' motion anlld ordered a hearing befire i a administra;tivc law judge fr further proceedinllgs consistclt s \ith the court's remand. Respondent, o July 7, 1980, filed a motion w ith the court that the Hoard be held in con- tempt and its July 3, 198(0, order be quashed. The court deiced Respondelit'lt motions andl directed the parties to proceed to a prompt e identiary hearing before in ad- lillistraltivc la:D jldgc. In 11 his posture, the hearinlg as conducted by me oin July 28, 98X(), in St ouis. NMissou- ri. All parties appeared at the hearing and were afforded full opportunity to introduce oral and documelnntar) ei- dence relevant t the material issues. Uponl the entire record, :' my ohbservation of the demeanor of the 's it- nesses. and with due consideratioln for the able briefs of the parties. I make the following findings with respect to Responldent's ohjectionsl to conduct affectling the restlts of the election. T1he Conduct ill Questio n The Marcet 15, 1979. election now beiig contested was the second held in Case 4-RC-8812. The first was con- ducted o(i January 18, 1979 The Union lost and filed oh- jections to that election. On February 14, 1979, the Re- gional Director's report anid recommendations issued. overruling some of the Union's objections and referring the rest to hearing. Thereafter, the parties entered into a stipulation, approved by the Regional Director, setting the first election aside. The stipulationi contains a nonad- mission clause by Respondent. The Conduct of Walters and Rodden ()n February 23, 1979. Respondent sent a letter to ea,h of its guards explaining that to expedite matters Re- spondent had voluntarily agreed to a new election. but did not admit any wrongdoing or any finding of employ- er impropriety by the Board. On February 24 or 25, after receiving the letter, several guards were gathered in their lounge discussing Respondent's February 23 letter. During this discussiot Gerald Walter,, a nonsupervisory security guard aid union alherent. said that the Compa- n, had only agreed to a second election because it was : (rliti error, ii) thil IrilLsrillpt iire hIcrch bti, .111 .orr,.lte d Il l I) CIS I()'sONS ()01I NA I I)NAI. I ABi()R R A l IO()NS B()ARI) afraid the Hoard would find tlIc Company guilty of someic illegal activity if a hearing were held. Walters referred to Respondent's February 23 letter as a "adinission of guilt." Security guard Iness Jill Morrison, who reCdibly testified to Walters' statements above . asserts that shc assumed Walters' comnientlis were just his own personal opinion. Although Michael Aiiderson is a wvitness whose tcsti- mony must be viewed with considerable caution, fill rca sons later set forth in his Decision, I credit hini in that both Walters and guard John Rodden told hint that Re- spondent's agreementl to a second lectionl aiounlted to an admission of guilt. The relevant evidence with regard to other conduct ofl John Rodden is found il his testinrony, and that of secu- rity guards Joseph Brenner, Jr.. and Michael Anderson.' Hrenner's testimony ssih respect to Rodden's conduct is internally inconsistent, and inconsistent %%ith his pre- hearing statement to the Board.` Furthermore, it ap- peared to me that he was consciously embroidering his testimony and evading a accurate version of Roddenl's actions. I do not credit his testimony where it conflicts with that of Rodden, who was a more impressive witness in terms of' both demeanor and direct and consistent tes- timony. I find that after the issuance of the Regional Director's February 14 report, Rodden procured a copy I'ron the Union's attorney, and told Brenner he had a document he would like Brenrier to examine because Roddenl thought it might assist Brenner in making up his miind about the forthcoming election. The following day, Rodden handed Brennier a copy of the report, which contains summaries of the testimony of the witnesses 4 Morrisoil als nrl inlpresie xvx. ss xxl ;io appearedl t h bslthllcl] certain lf what 'he hi;ltl Ilcrdt, iml to he ca:ret1ulls ;ld IIholl.] rclatllng it I do not credit \r'ahters' gcreral scrsioi where il iighl appear to .. tradic tl;lt Oif Morrison t'he tlimoll} lf I)avld Pailik Respoidelt's genilerl imalinigcl, Is- far as i is relevani to Rodden's conduct, corlris ,I', o h carlsay tid l hils iet evidenliar weight Illr do I colnsidcr II a persuasi e factor in evaluiltilliig Anderson's credihility r A eCxamples of this inclilsitric . I3rcnncr irst cIlceLded thailt Rodden lneer used Ihe word "afliidavits,," acknovlctlginrig that it as;li his (Brenner's) conclusionll hal thll h lt as slhalt Rodden was talking ahlioul tc later denies recalling Rtidden lme(llti(lliig anythillg abholt ;a sulIlilTar aild quotes him as sa lilg. "I call show Mla tile af tlidail" I leull. )CIt'IOIitedC `ithi his preha;lring slltenlenll i xwhlt'h liht quoti, d Rddc ii as ri)ig. "'These are smnllaries of the aflidavits,'' i(e Cva.i:cly tciiCd i perli- riten part, as (olllows A }i\;ldetvly Joihn ITust have said, "I'hese aire the slumrires I :; as led i( believe Lha at first lie .crc affidasil s } Intly I rllSt haxle said Ihiat they cre summaries Ihis is- deiiticl ,hi;lt I sid T'his is my signature A. I had heard nlothing mentioncd of' sulilmaries I wals to assumrne if he would have said siumniaries II would hav :e rnllde a bit of difterence to me. Hlut wh l hie said aflidav;s, it i luck lul ill my mind that that is what caused nle II say. "WIell Johln, I theiigHt tihe> were confidential." Q Now did Mr. Roiddenl use the affid;lavis or siatelnrltls' A. Statemeiiis he didn't use the wo ird affidavils? A Well I gave the manl a siateenti ailld hey called it itl t'flidtaii So I assumed that hey were affida its Q You assumed they were affid is A Yes, sir proffercd to the Regionlal )irector inl the foirm of investi- gative affidavits. Rodden told Brenner to examitine it, re- I'rred hini to the sectionl regardinlg a November l978 i- creaseC oft 35 cents, and opCtied that employces had re- civcd ;l 7-pcrccent increase i accord ith the xisttilg presidential guidelines. I also find it is reasonablyv proh- able that lie mentioned to Birenner that the docuniit contained stnlnniarics f testimonrl received by the Re- gionalll I)Irector, bIut I credit Roddeni that he had neither seen or told anyone that he had secel the actual prehear- ing statemcnllts, sumnlmarized thereiln." I further inid that the evidernce relating to te rennller/Rodden coinversa- tions warrants no finding that lie had bcin shox~sni or pro- vided the statements or copies thereof bhy Board agents. In a swornl affidavlit given to a oard agetit on March 28. 1979. Anderson asserted that RKoddcn asked hini. on March 2, if he would coinsider a "secret docunicit'" that could change his mind about the Union if Rodden could show it to him. Anderson then asked Rodden, according to this affidavit, what secret docttnlent he was rcferring to. anid Rodden present(ed him with a rolled up docu- ment that Rodden described as the result of the Board agent's investigationl which Anderson should not reveal to others because it could get Rodden and others in trou- hbc. The affidavit continues that the two examined the lestimonly of Andersonl and others therein, and discussed testimony in the documenit about the pay increase that Rodden explained to Anderson. In this statemeit. Ander- son asserted that Rodden characterized the document being reviev wcd as a "secret document" t obtaried from the Board agernt in confidence, and which was aailable only to Responident, the Union, and their attorneys, for their eyes only, and that Rodden stated that Board agent Gardiner had showni him affidavits of witnesses which Rodden thel read. Andersonl gave another affidavit to the Board on May 17, 1980, retracting his earlier statement that Rodden (1) had used the term "secret document" in their March 2 conlversation; (2) had not shown him the title page to the document they discussed; (3) stated he had received the document from the Board or its agent in confidence; or (4) stated Board agent Gardiner had showed him Ander- son's statement. This second affidas it substantially sup- ports Rodden's testimony. At the hearing, Anderson testified that he had given false testiniony in his first sworn statement in order to help Respondent. The record is clear that any misstate- ments or fabrications by Anderson were of his own doing, withlout the knowledge, suggestion, solicitation, approval, or encouragement of Respondent. Moreover, I note that although he stated in his second affidavit that he first heard the term "secret document" from Re- spondent's attorney during investigation of the objec- tions, Anderson credibly acknowledged before me that, in fact, he had first heard the term from Brennier prior to Anderson's meeting with Respondent's attorney. The ' I h Regional Direcitr had recorlnlerdcd ioverruling the Urli's rob e l l l to i lis rilise this ctoclsiitI is urilhLer suppirtetil hs tJrenillr's IetiiTiOii that Roddt11i told hill thre xx re I1(I niasm il ht stateclentt he las shituo n. but he CLil l ell A ho, the uilliesses were fromrn halt xula ald 112 SIX F.A(iS ()VER MD-AM.RICA, INC record sxarrants no inference of the slightest impropriety to any counsel. Considering all of Anderson's prehearing statements and hearing testimony, together with his demeanor, and noting that he was against the Union when he gave his first written statement, but for it 'when he gave his second, I am persuaded that his testimony, written and oral, must he viewed as questionable at best, and the since retracted statements in his first affidavit which at- tribute alleged misconduct to Rodden are entitled to little, if any, weight. In the circumstances, I credit Rodden's version of events and find that he showed the Regional Director's report to Anderson on or about March 2 while they were working. They discussed the 35-cent raise and its computation, with Rodden again expressing his opinion that the Company was following the president's guide- lines. In response to Anderson's question, he advised that he had obtained the Regional Director's report from the Union, and that it was a public document. Rodden did not describe the report as a secret document or say that he received it or affidavits from the B1oard or its agents. Nor was he ever shov l copies of an Board taken affi- davits, other than his own. or tell anyone the Board agent had shown him any. Conclusions I do not agree with Respondent that the agency status of Rodden and Walters vi%-a-vi% the Union is immaterial. It is well settled that less weight is to be accorded to the conduct of rank-and-file employees than that of the par- ties to an election in considering election objections. ! Rodden and Walters were indeed outspoken union parti- sans. This does not of itself make them union agents. Viewed in the light most favorable to Respondent, the evidence shows that Walters attended a meeting with the Union and Respondent \wherein an election agreement was reached, and was present at that meeting to assist the Union. With respect to Rodden, he acted as the Union's election observer at both elections and at the second election signed the eligibility list and the tally of ballots for the Union, inl the absence of any other union representative. Rodden was the only union observer at the second election. Walters' presence to assist the Union iii arriving at an election agreement means nothing more than that the Union utilized an adherent with personal knov ledge of the work force and Respondent's operation to provide it with the necessary information preliminary to reaching the election agreement. I find nothing in this activit to warrant even an inference that Walters was acting on behalf of the Union when he made the statements that Respondent objects to. Similarly. the use of Rodden as a union observer does not translate into a designation of him by the Union as its agent for all purposes, nor does the presence of Rodden at counsel table to assist the Union's counsel before me suggest that Rodden pos- sessed any agency status when he engaged in the con- duct in question. There is no evidence that the Union in- I See, g . I-hbricuL In , 213 NI.RB I l , 11')7 (1'1771. aiid . I. R IB .irunmar o/ (Cahljiirnu I ., ) I t 2 422, 425s I lI ( lr It 7 stigated, directed. authorized, adopted, ratified, or con- doned any of the alleged conduct of Walters or Rodden in issue before me, and I ind the were not actine as agents of the Union when they allegedly engaged ili this conduct, nor may such conLduel be attributed to the Unlion on the hasis of the record hefore me The comments of Walters alld Rodden with respect to Respondent's "adnission of guill" acere lclear expres- sions of personal opinion easil recognizable hy the clec- torale as such, i a nd % ere readil susceptible of alia- lion hby the employees, all of whom had a copy of Re- spondenll's letter to assist that evaluation, and none of whom had any apparent reason to believe either Walters or Rodden were privy to managenent's reasons other than those openly expressed in its letter. All that Rodden did was discuss ln unaltered public document vith Anderson and Brenner: invite their atten- lion to it: express his opinion on the computation of the pay raise; speculate with them on the identity of the A it- I1csses whose summarized testimon appears in the docu- ment; and try to persuade them to support the kUnion. This activity by a unit employee amounts to nothing more than permissible campaign propaganda in an3 even t. I find that neither Rodden nor Walters said nor did anything that would arguably impair or call into question the oard's neutrality or otherwise constitute objection- able preelection conduct. Thus. their conduct is not oh- jectionable on to grounds: (1) it is not attributable to a party: TM and (2) it does not in itself rise to the lecel of objectionable conduct arrant ing setting aside the dlec- tion. There is no probative evidence that any oard agent engaged in any act ".hich tends to destroy confidence in the Board's clection process, or which could reason- abhly he interpreted as impugniiig the election standards [thle oard] seek[s] to maintain."l'2 ]hi, i 1s 1s\ldenc h .\litrii-iit c,tilrl5 hil hti it( lltdr, i u ICrs' tllrlllll ,a' hi, pililOl. ;llld Ih. kLii l.dgL' h\ Ctipipo(..' I}ltl R edIdent Inl ,iltcrs rc trong unilllll piarll,tls siI.I J h- i C .i rta'.,II. ilh ' letdci. 'l i Cakll - tipl wh) c,', 1i lit' Iheir ItilIT I IIt'Ix tnilr i Rt Ip0nl. AClll tih C;lliIol " (iutIon Inidqr.t.-f-i'ttt /tsl, 24) N R 546 1179"), Hh',1u In iitti (lrpoiitlr . 23i N R 1 (I'?) U)nlt (ltor ii t 215 N Rl 595 11)7S) /Oirmoo. li, 2 N R I (I 191 l)iuhi, ( ,r, (, . Im ,rp, irtd. 2 Nt Rll 217 IJ 74iL Rht. r ,. 17.3 N R 1414 (I9I . arid I1I/'Jri ( upa, lltor ( ,punti 1) ...Ot.. .o/ P R 5l/rn &t (,. - Ir . IhlI NI R 15 1 I i,). { iLJlteIl o1 hs RI' spritctm arc IIstildgtllg.ihibl t he,liu, al/ lio/i, lIlt r or rltp lr ll· l ltldulI t illll g 1 d I rlihullr l T el ptliees ,t .ltr1 lt [pr duiCllnrs i I B ard itello n hallltl di',trliilltron li IllCrel irii oiITpllits lhcrcrs mlelalditlig etnlpiots I, heli cc Rc splt.ltltt thcreii had hecrt fltind giilis h} the tliirde nii,c of lit Blard', fficiad elct r nlicc anti ditrhbtiin ot ]eaflt' tti',hl l lh tct'l/. rig the setiltllle t ,j unllfair lahor prathie harge, s fildgllgs of gilt h. til' hloard Rp(Tlldci11 ' prfter of ( obilrwl l*tutra, (rtponroiti 23 NIRt Q9I) ) "'7s), t, ulpl1orl Its ohltlltln is al,, 'I ilappilt' he b lile t i l til t'i% ' i l ltt id dothltari~tl hi t.l I mnI kt a eticr k rlt[ll i1 (trck 11 Itlt i ai .ialrolirt i1 he ( O nrnllmi-lr i I ihor t M1issi hUi111i1tl I 2 (il'tk timp]ii t'%, S pcrti'Lt'111 l' ' it sp.hllpkc ino i-.llghs , ;w-ilhnn 24 1hltllS A' t1 ' LCLt1 111/. xt-l lnig lth %11J 1 ' 1i t i J lll-ll th e B}oard t;>1111 J Th ptl'lTlIlla h1,r zrLifu~.orIfl- CCLe Ie 1Ard ' i, appearaice of 1 lltl l ltls N.) %tlth Cl rcl lTMl1CC' , XIII 11U 1 t'lU 7 .thlrr~ Irc't m 1S nglccrmtn ( r. ith N[ R t "h q lt67) II I)CISI()NS ()F NA I()NAI. I.AIB()R RI.AFI()NS B()ARI) In sum, the evidence will not support any finding of impairment of the Hoard's neutrality or resulting impact on the election. R ECO()MMENDATI()N It is recommended that Respondent's Objections be overruled, and that the oard's prceious Decision and Order herein be affirmed hvby the Board. 114