Mcdonnell Douglas Helicopter Co.

MCDONNELL DOUGLAS` CO. McDonnell Douglas Helicopter Company and Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of Amer- ica (UAW), AFL-CIO. Case 28-CA-8428 23 April 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 8 December 1986 Administrative Law Judge George Christensen issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed a brief in response to the General Counsel's exceptions. 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 record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 Cit. 1951) We have carefully examined the record and find no basis for re- versing the findings. Additionally, the General Counsel excepted to alleged failures by the judge to make certain credibility resolutions of conflicts in the testimony of Lieutenant Hanner and the General Counsel's witnesses concerning the 16 April 1986 incident. Footnote 3 of the judge's decision' addresses just such concerns The judge notes that every conflict has not been spe- cifically resolved, then gives the basis for his findings, and concludes "therefore, any testimony in the record that is inconsistent with my find- ings is discredited." Implicitly all conflicts are resolved- by the footnote. Even resolving the conflicts in the light most favorable to the General Counsel, the evidence fails to establish a violation. The testimonial con- flicts pertain to inconsequential facts, which are of no significance in de- termining whether the Respondent's conduct was violative of the Act. We agree with the judge's dismissal of the complaint. We note that this case does not present an access issue Rather, the issue is whether the Re- spondent, through its agent, Lieutenant Harmer, engaged in conduct that under the specific circumstances of this case tended to interfere with, re- strain, or coerce employees in the exercise of their Sec. 7 rights. The record evidence establishes that the Employer uniformly adhered to a policy of allowing only employees to distribute literature at its employee entrance gates. In furtherance of this policy the Respondent had a legiti- mate interest in determining the identity of the leafletters. In light of the fact that the Respondent employs over 2000 employees at the plant in question, it is reasonable that the Respondent would need to inquire as to the identity of those leafletting in order to ascertain that they were indeed employees. Further, it is clear that the Respondent, upon learning that the leafletters were employees (with one possible exception), did nothing which interfered with further distribution of the leaflets. Thus, we find that the Respondent's security guard's actions did not violate Sec. 8(a)(1) 707 Jordan Ziprin Esq., for the General Counsel. Robert J Deeny and Tibor Nagy, Jr., Esgs (Snell & Wilmer), of Phoenix, Arizona, for MDHC. William T Ross, of Mesa, Arizona, for UAW. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge. On 24 and 25 September 19861 I conducted a hearing at Phoenix, Arizona, to try issues raised by a complaint issued on 16 May based on original and amended charges filed on 17 and 18 April by the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO (UAW). The complaint alleged on 16 April a security officer employed by McDonnell Douglas Helicopter Company (MDHC)-Guard Lieutenant Richard Hanner-sur- veilled, demanded and, wrote down the names of several persons distributing UAW literature to employees enter- ing and leaving MDHC's premises during a midafternoon shift change, thereby violating Section 8(a)(1) of the Na- tional Labor Relations Act (Act). In its answer to the complaint, MDHC admitted at times material it employed Harmer as a guard lieutenant but denied ' Harmer was acting - as its agent, denied Hanner committed the acts attributed to him, and denied violating the Act. The issues raised by the above are: (1) whether at times material Harmer was an agent of MDHC acting on its behalf; (2) if 'so, whether Hanner committed the acts -attributed to him; and (3) if so, whether MDHC thereby violated the Act. The General Counsel and MDHC appeared by counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Both counsels filed briefs. Based on my review of the entire record,2 observation of the witnesses, perusal of the briefs and research, I enter the following3 FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at all pertinent times MDHC was an employer engaged in commerce in a business affecting commerce and UAW was a labor organization within the meaning of Section 2 of the Act. i Read 1986 after further date references omitting the year 2 The General Counsel moved to correct the transcript by changing the word "counsel" at p. 100, 7, to "console." The motion is denied; in- stead, the word "personnel" shall be substituted. 3 Although every apparent or nonapparent conflict in the evidence has not been specifically resolved below, my findings are based on my exami- nation of the entire record, my observation of the witnesses' demeanor while testifying, and my evaluation of the reliability of their testimony; therefore, any testimony in the record that is inconsistent with my find- ings is discredited. 283 NLRB No. 108 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II. THE ALLEGED UNFAIR LABOR PRACTICES ' A. Facts MDHC manufactures military helicopters at Mesa, Ar- izona. Its facilities include a flight line, hangers, a ware- house, an office building, a large plant, and a parking lot. All the facilities just named are on MDHC property. The buildings are enclosed by a high chain-link fence. After parking their autos within the parking lot, employ- ees pass through one of three gates in proceeding to and exiting from their work stations. One gate has a turnstile released-by a guard at a central control room following his comparison of the picture -on an identification badge inserted by an entering employee in a slot at the turnstile with the face of the entrant reflected on a screen coupled to a camera at the turnstile. A gate next to the turnstile is opened at shift changes for the use of exiting employees, after displaying their badges to a guard stationed inside the gate. Another gate is the entrance to/exit from the main lobby of - the office building. There, guards sta- tioned inside the outer door to the lobby (the door be- tween the parking lot and the lobby) scrutinize the badges of employees coming through the outside door and proceeding towards the inside door (the door lead- ing from the lobby towards the plant) and employees coming through the inside door and proceeding towards the-outside door. Guards are stationed at a guard shack inside a third gate in the chain-link fence and monitor the badges of employees passing between the parking lot and the plant. UAW, conducted an organizing campaign at MDHC's facilities in 1985.. Early, in the campaign, (in March 1985), MDHC guards checked badges worn by persons distrib- uting UAW literature to its employees during a shift change on MDHC property (on the parking lot, just out- side the three gates described above), noted names of the distributors, checked the names against indexes main- tained by MDHC and its parent company, ascertained some of the distributors were MDHC employees and some were employees of other divisions of MDHC's parent company, and barred the latter from further dis- tribution on its premises.4 UAW supporters among MDHC's employees frequent- ly destributed UAW, literature at the locations described above during shift changes between March and 6 No- vember '1985, when an election was conducted under Board' auspices.5 Since 6 November 1985, UAW supporters distributed UAW literature at the three locations one in mid-March and on 16 April.6 4 MDHC had a policy prohibiting distributions on its property by other than employees. 5 Pursuant -to a direction of election issued in Case 28-RC-4300, UAW lost the election, filed election objections and unfair labor practice charges alleging MDHC conduct during the campaign prevented a fair election and violated the Act, a complaint was issued, the complaint alle- gations and election objection 's' were consolidated for hearing purposes, and a hearing is currently under way 6 Two of the 16 April distributors-Dons Hunt and John Thomas- were distributors on 16 April, in nud-March and on numerous other dates between March and November 1985. The 16 April:distribution occurred-at the midafternoon shift change-between 3:20 and 3:50 p.m. Over 2000 em- ployees pass through the- three gates during.that period. Doris Hunt, an MDHC employee scheduled to begin work on the second shift at 4 p.m., arrived at one of the gates about 3:20 p.m. and began to distribute UAW liter- ature to entering employees and (after 3:30 p.m., when the first shift ended) to exiting employees. A guard sta- tioned inside the gate came out shortly after Hunt began distributing literature, asked what Hunt was doing, was informed she was , distributing union literature, asked for a copy, and received one. The guard reentered the gate and reported to someone unknown to Hunt literature was being distributed outside the gate. Hunt was joined by first shift employee Lana Johnson about 3:35 p.m. and Johnson immediately began assisting Hunt in distributing literature. Distributors John Thomas, Guy Terry, George Johnson, Betty Johnson, and Jerry Fletcher appeared at the other two gates shortly after 3:30 p.m. All but Betty Johnson were first shift employ- ees.7 All but Betty Johnson wore MDHC identification badges.8 MDHC employs a guard force on shifts covering the full 24 hours of each day. Each shift is in charge of a watch commander carrying the rank of lieutenant. The guard force is equipped with sidearms and walkie-talkies while on duty. The guard headquarters are in a centrally located control room. The facility's radio and telephone communications, a control panel monitoring, inter alia, cameras covering the parking lot and the turnstile, are located within the control room. Guards man the control panel. On 16 April, Guard Lieutenant Richard Harmer was the watch commander for a guard shift ending at 3 p.m. Lieutenant Carl' Fullenwider was the watch commander for, a guard shift commencing at 3 p.m. On completing his 16 April shift, Hanner turned in his sidearm and walkie-talkie, but remained in the control room to- com- plete'some paperwork., He received a message from one of the gate, guards about 3:30 p.m. that literature was being distributed at one of the gates and transmitted that information to Fullenwider. The two scrutinized the screens projecting images from the parking lot and noted individuals distributing literature at all three gates but, due to the low resolution of the parking lot cameras, were unable to determine the identity of the distributors or whether they were wearing' MDHC identification badges. Fullenwider telephoned MDHC's employee rela- tions director, reported what -he and Harmer observed, and on completing the call, informed Harmer he had been directed to get the -names of the distributors and de- termine whether they were MDHC employees and asked Harmer to go to the three gates to carry out those in- structions.9 Harmer agreed to carry out the requested in- vestigation. - 7 Betty Johnson was George Johnson's wife and was employed by a contractor working within MDHC's premises. 9 Contractor employees were required to surrender their badges before passing through an exit gate. 9 Fullenwider was still getting his shift organized and had a spur on one heel, which made it painful for him to walk any distance., MCDONNELL DOUGLAS CO. 709 About 3:35 p.m. Harmer took a clipboard and pad, left the control room, went to each gate, asked each distribu- tor to display his MDHC identification badge, asked each for his or her name, and wrote the name of each distributor-on his pad. He did not ask any of the distribu- tors to cease distribution, he did not threaten any distrib- utor with discipline, and he replied to their inquiries the reason for his actions with statements he was only doing his job, he was carrying out instructions, or the like. Hanner spent about 1 minute addressing each of the seven distributors and returned to the control room about 3:50 p.m, On his return, he and Fullenwider checked MDHC's employee indexes, confirmed all the distributors other than Betty Johnson were current MDHC employees and identified Betty Johnson as the current employee of an MDHC contractor. 1 ° Hanner and Fullenwider subsequently prepared and forwarded to employee relations standard investigation reports con- taining the information employee relations requested; i.e., the names of the seven distributors and their current em- ployee status. There is no evidence any entries were made in the per- sonnel files of the six MDHC employees, any discipli- nary action was taken against the six or that Betty John- son's employment status was affected. B. Analysis and Conclusions 1. The agency issue Although -Harmer may not have been on paid time while carrying out Fullenwider's request that he investi- gate the employment status of the distributors,' 1 he cer- tainly was carrying out security duties assigned to the guard forces by MDHC management, as the alter ego of the man assigned to perform those duties-Fullenwider. I therefore find that while conducting his investigation and making his report Harmer was an agent of MDHC, acting on its behalf within the meaning of Section 2 of the Act. 2. Commission of the acts alleged in the complaint I have entered findings on 16 April, that Harmer asked the seven individuals distributing UAW literature on MDHC property to show him their MDHC employee identification badges, asked for their names, wrote their names on a pad, and wrote a report advising MDHC's employee relations director the names of the seven dis- tributors and their employee status, all as alleged in the complaint and denied in the answer. 3. Did MDHC violate the Act by virtue of Hanner's actions Conflicts between the rights of a union to communi- cate with employees on their employer's property and their employer's right to limit union access to that prop- erty for that purpose has been the subject of voluminous litigation. In cases concerning that conflict, the United States Su- preme Court has ruled that it is the Board's function "to seek a proper accommodation between the two" 12 ".. . with as little destruction of one as is consistent with the maintenance of the other" 13 and, as the Board noted in a recent case, "the claim of a party to one or the other of these rights will have varying degrees of strength de- pending on the facts of the particular case."14 In this case, most of the over 20(0 employees who pass through the gates at the midafternoon shift change passed by the UAW distributors before Hanner arrived. It is doubtful more than a few were prevented from re- ceiving UAW literature during the fevv minutes Harmer conversed with the seven distributors. MDHC had a legitimate interest in identifying the dis tributors to see if they were lawfully entitled to distrib- ute literature on its property and, having ascertained (with one possible exception) they were, neither inter- fered with nor prevented the distribution and neither threatened to nor instituted any disciplinary action against the distributors. On these facts, J find MDHC's right to police its prop- erty in furtherance of its lawful policies had minimal impact on any employee rights under Section 7 of the Act, and therefore MDHC did not violate the Act by' Hanner's actions. 15 CONCLUSIONS OF LAw' 1. At all pertinent times, MDHC was an employer en- gaged in commerce in a business affecting commerce and UAW was a labor organization within the meaning of Section 2 of the Act. 2. At all pertinent times Richard Hanner was an agent of MDHC acting on its behalf within the meaning of Section 2 of the Act. 3. MDHC did not violate the Act, by Harmer's 16 April inspection of the employee badges of the persons distributing UAW literature on MDHC; property, his re- questing their names, his writing their names on a scratch pad, his checking MDHC employee indexes to determine current employee status, and his preparation, and submission of a report to higher management detail- ing the foregoing. 1° Which differed from Betty Johnson's statement to Harmer at the gate; i.e., that she was an MDHC employee but had forgotten her identi- fication badge that day and secured a temporary badge while working the first shift, which, in accordance with normal procedure, she turned in on completing her shift. 11 The record does not disclose Hanner's pay status (salaried or hourly) nor whether he was paid for the time he spent carrying out em- ployee relations' instructions. 12 Central Hardware Co v.'NLRB, 407 U.S. 539, 543 (1972). 13 Babcock & Wilcox Co, 351 U S 105, 112 (1956). 14 Fairmont Hotel, 282 NLRB 139 (1986) 15 Uniontown Hospital Assn., 277 NLRB 1299, 1307 (1985), Metal In- dustries, 251 NLRB 1523, 1526 (1986); Maywood, Inc., 251 NLRB 979, 986 (1980); Federated Department Stores, 241 NLRB 240, 242-243 (1979); National Steel Corp., 238 NLRB 253, 255 (1978). 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed16 16 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended ORDER The complaint is dismissed.. - Order shall, as provided in Sec ` 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived' for all pur- poses. -