Pagerly Detective And Security Agency, Inc.

494 PAGERLY DETECTIVE AGENCY Pagerly Detective and Security Agency, Inc. and In- dependent Union of Professional Technical and General Service Employees and Douglass A. Koyste. Cases 4-CA-13330, 4-CA-13384-2, and 4-CA-13330-5 14 December 1984 • DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS. ZIMMERMAN AND HUNTER On 14 October 1983 Administrative Law Judge William A. Gershuny issued the attached decision. The Union filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a , three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings,2 At the hearing the judge excluded as inadmissible hearsay certain tes- timony of employee Chris Jarecki offered by the General Counsel Ac- cording to the General Counsel's offer of proof Jarecki would have testi- fied that, shortly after a meeting in October 1982 between dischargee George aster and the Respondent's president Thomas Pagerly, aster said to Jarecki, "[C]an you believe it Mr Pagerly wants me to pro- vide him with a list of employees in support of the union" We find merit in the Union's exception to the judge's ruling and find that Jareclu's testi- mony is a prior consistent statement admissible under Rule 801(d)(1)(B) of the Federal Rules of Evidence The record reveals that the Respond- ent vigorously attacked the veracity of aster's testimony at the hearing that Pagerly directed him to provide a list of union supporters prior to aster's discharge The judge should have permitted the General Counsel to rebut such a charge against aster by evidence of the prior consistent statement See United States v Paroch, 703 F 2d 768, 784-787 (4th Co. 1983), United States v Dominguez, 604 F 2d 304, 311 (4th Cir 1979), cert denied 444 U S 1014 (1980) Nonetheless we find the judge's erroneous evidentiary ruling was not prejudicial and we adopt his finding that as- ter's demotion and discharge did not violate the Act Thus, aster's testi- mony was totally discredited by the judge on the basis of demeanor and President Pagerly's testimony was totally credited In such circumstances Jareclu's testimony concerning what aster told Jarecki is insufficient to disturb the critical credibility resolutions concerning the conversations between aster and Pagerly We adopt the judge's evidentiary rulings in all other respects Chairman Dotson agrees that aster's demotion and discharge did not violate the Act The Chairman, however, would affirm the judge's exclu- sion of Jareclu's testimony as hearsay Because there is no contention by any party that aster's alleged statement to Jarecki was inconsistent with any other statement ever made by aster concerning preparation of a list of union supporters, Jareclu's testimony was not offered to rebut a charge against aster of recent fabrication or improper influence or motive as re- quired by Rule 801 (d)(1)(B) Cf Baker v Elcona Homes Carp, 588 F 2d 551, 559 (6th Co. 1978) In the Chairman's view the proffered testimony is therefore excludable under the general rule that an out-of-court prior consistent statement is inadmissible hearsay 4 Wigmore, Evidence § 1124 at 255 (Chadbourn rev 1972) See also United States v Check, 582 F 2d 668, 677 fn 27 (2d Cir 1978) 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Union asserts that the judge's decision is the product of bias, hos- tility, and misconduct against the General Counsel and her witness We and conclusions but to substitute the attached Order and notice for that of the judge.3 ORDER The National Labor Relations Board orders that the Respondent,. Pagerly Detective and -Security Agency, Inc., Wernersville, Pennsylvania, its offi- cers, agents, successors, 'and assigns, shall 1. Cease and desist from (a) Coercively interrogating any empl4ee about union support or union activities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Post at its Wernersville, Pennsylvania office copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Re- gional Director for Region 4, after being signed by the Respondent's authorized representative, shall.lx posted by , the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to have carefully examined the record and find no basis to the Union's alle- gations In the absence of exceptions Chairman Dotson would adopt pro forma the judge's finding that the Respondent violated Sec 8(a)(1) by interro- gating employee Koyste 3 Relying on Alleluia Cushion Ca, 221 NLRB 999 (1975), the judge found that the Respondent violated Sec 8(a)(1) when, following the re- ceipt of an OSHA complaint against the Respondent, its president Thomas Pagerly remarked to an employee that he would like to get his hands on the "son of a bitch" who did that and "would drive him right through the ground" In Meyers Industries, 268 NLRB 493, 497 (1984), the Board overruled Alleluia and held that "[lin general, to find an em- ployee's activity to be 'concerted' we shall require that it be engaged in with or on the authority of other employees, and not by and solely on behalf of the employee himself" In the absence of evidence in this case demonstrating that Pagerly's remarks were directed toward the exercise of concerted activity, that portion of the judge's Order and notice per- taining to Pagerly's statement is at odds with our holding in Meyers Ac- cordingly we shall delete the pertinent portion of the judge's Order and notice and shall substitute a new Order and notice for that of the judge including an appropriate cease-and-desist provision inadvertently omitted by the judge For the reasons stated in Member Zimmerman's dissenting opinion in Meyers, he would remedy a threat against even one individual engaged in the implicitly concerted activity of contacting OSHA In addition, he finds that the majority rule in Meyers does not control the threat at issue here because that threat was subject to the reasonable interpretation of forecasting harm not only to individual employees who contact OSHA but also to any groups of employees who make such contact The latter activity is undisputedly "concerted" within the meaning of the Act and cannot be lawfully threatened See Member Zimmerman's dissenting opinion in D A Collins Refractories, 272 NLRB 931, 933 (1984) 4 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board" 273 NLRB No. 77 PAGERLY DETECTIVE AGENCY 495 ensure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the complaints be dismissed insofar as they allege violations not found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union — To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. PAGERLY DETECTIVE AND SECURITY AGENCY, INC. DECISION STATEMENT OF THE CASE WILLIAM A GERSHUNY, Administrative Law Judge A hearing was conducted in Reading, Pennsylvania, on August 17-18, 1983, on complaints alleging the demotion and discharge of a top-level supervisor and a number of violations of Section 8(a)(1) of the Act On the entire record, including my observation of the witnesses' demeanor, I make the following FINDINGS OF FACT AND CONCLUSIONS OF LAW I. JURISDICTION The complaints allege, the answer admits, and I find that Respondent is an employer subject to the Act II. UNFAIR LABOR PRACTICES A. Background In August 1982, the Independent Union initiated a campaign to organize guards and supervisors employed at Respondent's security and armored car business. Ad- mittedly, this Union was an ineligible .labor organization under the Act and, subsequently, another union (the United Guards Union) organized and became the repre- sentative of Respondent's guards The table of organization of the Company includes Company President Thomas Pagerly,. Company Vice Presidents David Pagerly and J. Sue Oberly, Personnel Manager Teri Oberly, a director of security, 2 lieutenants (one of whom is George Oister), and approximately 30 sergeants, corporals, and PFCs (all of whom are supervi- sors) There are approximately 125 guards employed by Respondent. These cases, however, involve essentially three em- ployees: Lieutenant Oister (Case 4-CA-13330), mechanic Donato (Case 4-CA-13384-2), and guard Koyste (Case 4-CA-13330-5). B. Case 4-CA-13330-5 The evidence is undisputed that in early February 1983 Company Vice President Oberly asked guard Koyste if the Union sent him a letter and whether he re- turned "the card." The interrogation of an employee by management as to his union activity and sympathies is violative of Section 8(a)(1) of the Act. • C. Case 4-CA-13384-2 Paragraphs 5(a), (b), and (c) allege a number of viola- tions of Section 8(a)(1) by Company President Pagerly On November 15, 1982, by interrogating mechanic Donato concerning attendance and employee activity at a union gathering, by creating the impression of surveil- lance, and by asking him to ascertain and divulge infor- mation ocncerning union activity and sympathies, on No- vember 24, 1982, by threatening to harm an unidentified employee who lodged a safety complaint with OSHA; and on December 18, 1982, by threatening to deny a general wage increase if employees selected the Union as their representative. In support of these allegations, only the testimony of mechanic Donato was offered. Based principally on my observation of his demeanor on the stand, I am com- pelled to reject his testimony in its entirety. As a witness, Donato was heavily biased (he had been discharged for reasons unrelated to this case), evasive, and lacking in candor His testimony was unconvincing (and, on cross-examination, vague) and the events he de- scribed were highly improbable (e.g., despite the fact that he was the principal union organizer, Donato testi- fied that he readily turned over to Pagerly, at the latter's request, a list of employees who had attended a union function, with markings to indicate which employees Donato could trust). In addition, his testimony concern- ing events surrounding the production of the list was flatly contradicted by three coemployees who had no ap- parent interest in the case and whose testimony I credit. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also credit the denials of Pagerly, who, based on my observation of his demeanor as a witness, was a forceful, convincing, and candid witness whose testimony throughout rang true. Nevertheless, this case will not be dismissed in its en- tirety. As to the allegations of paragraph 5(b), -Pagerly admitted that, after receiving an OSHA letter listing 11 violations in the garage, he went to the garage and in- structed Donato to rectify the problems right away and added, "I'd like to get my hands on the SOB who did this, -I'll drive him into the ground." Board law is clear that threats to an employee because of the filing of a safety complaint with the responsible government ,agency are unlawful under the Act. Alleluia Cushion Co., 221 NLRB 999 (1975). D. Case 4-CA-13330 • Paragraph 5 of this complaint alleges the unlawful de- motion of Lieutenant Oister to corporal (supervisor) on November 8 and his unlawful discharge on the following day because of his refusal "to assist Respondent in secur- ing a list of employees supporting the Union, so that Re- spondent could terminate said employees," based on Parker-Robb Chevrolet, 262 NLRB 402 (1982). The only supporting testimony offered was that of Lieutenant Oister. For reasons set forth below, his testimony, like that of Donato, is rejected in its entirety Accordingly, this case is dismissed. Based on my observation of his demeanor as a witness, I found Oister to be confused, untrustworthy, evasive, and totally lacking in candor. His testimony conflicted with his affidavit in that certain conversations as to his obtaining the listcertamly a most significant bit of evi- dence—were not given to the Board agent. His testimo- ny as to what Pagerly asked him to do about a list was self-contradictory (spy on employees/listen to what they are saying/prepare a list based on what Pager/y and other supervisors already knew about employee' senti- ment). None of the several incidents which were the basis for his demotion to supervisory corporal were fab- ricated and, when called to explain them, Oister admitted their occurrence, but misstated his role (e.g., he neglect- ed to testify on direct that he missed an important meet- ing with a bank client because he chose that morning to go hunting). He was discharged the following day when, admittedly, he insisted on bringing an hourly employee (mechanic Donato) to a management meeting at which there was absolutely no reason for him to believe disci- pline would be imposed; when he insisted that Donato remain as a witness, he was terminated because manage- ment would not be compelled to transact its business in the presence of an hourly mechanic: Oister- also gave false testimony as to when he first saw his personnel file and saw that certain reprimands were omitted. In sum, I had the clear impression at the hearing that this young man completely failed to appreciate the sanctity of the oath taken by a witness and that his testimony was, in part, exaggerated and, in part, manufactured for purposes of this case. [Recommended Order omitted from publication.]