The Wackenhut Corp.

212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Wackenhut Corporation and Dwain Haines and Michael Wascheck and Robert Condo and Mark Nixon. Cases 4-CA-16657-1, 4-CA- 16657-2, 4-CA-16657-3, and 4-CA-16657-4 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 6, 1988, Administrative Law Judge Claude R. Wolfe issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and 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, I 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 Cir 1951) We have carefully examined the record and find no basis for re- versing the findings Henry R. Protas and Monica McGhre-Lee, Esqs., for the General Counsel. Adin C. Goldberg, Esq., of New York, New York, for the Respondent DECISION CLAUDE R. WOLFE, Administrative Law Judge. This proceeding was litigated before me at Philadelphia, Pennsylvania, on 25, 26, and 27 January 1988 pursuant to charges timely filed and served in June 1987 and com- plaint issued on 11 August 1987.1 The complaint alleges that The Wackenhut Corporation (Respondent) refused to hire Dwain Haines, Michael Wascheck, Robert Condo, and Mark Nixon because they supported and as- sisted the United Plant Guard Workers of America, Local 506 (the Union), and thereby violated Section 8(a)(3) of the Act. The General Counsel theorizes that the refusals to hire were prompted by the four employ- ees' activities in processing grievances and opposing rati- fication for the current collective-bargaining agreement between Respondent and the Union Respondent con- i All dates are 1987 except where otherwise indicated tends it based its refusal to hire Wascheck, Condo, and Nixon on their work and discipline record as employees of Yoh Security, Inc, and that Haines did not file an ap- plication for work with Respondent After considering the record, the demeanor of the wit- nesses testifying before me, and the posttrial briefs sub- mitted by the parties, I conclude, for reasons set forth below, that Respondent has not violated the Act as al- leged FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent is, and has been at all times material, a Florida corporation engaged in the provision of security services at several locations throughout the United States, including Salem Hope Creek Nuclear Generating Station in Lower Alloways Township, New Jersey, and, during the year preceding the issuance of the complaint, Respondent, in the course and conduct of these business operations, derived gross revenues in excess of $500,000 and performed services valued in excess of $50,000 to customers located outside the State of New Jersey. Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On 29 April, Respondent commenced performing its contractual duty to supply security services at the Salem Hope Creek Nuclear Generating Stations. Before that date, those services had been furnished by Yoh Security, Inc (Yoh). During its incumbency, Yoh was party to a collective-bargaining agreement with the Union which covered Yoh's employees at this location. Condo, Nixon, Wascheck, and Haines were among those employees After securing the contract to perform the security work, Respondent advised Yoh employees by letter of 23 December 1986 that it had been awarded the work, would prepare transition plan and discuss continued em- ployment of Yoh employees in January, and would be in touch with their bargaining representative regarding wages and benefits. Subsequently, Respondent negotiated a collective-bargaining agreement with the Union effec- tive 1 May which was ratified by the employees. The ratification was not unanimous, and the General Counsel adduced uncontroverted and credited testimony that the alleged discriminatees opposed ratification of the agree- ment. There were two ratification meetings for each shift The first series of meetings was held on or about 24 March 1987 During the meeting with his particular shift on this date, each of the four men named above ex- pressed his opposition to Respondent's contract proposal. The proposal was rejected. There is no evidence that Respondent knew these employees had so acted Several 290 NLRB No. 30 WACKENHUT CORP other employees opposed ratification during these March meetings. After the March rejection of Respondent's proposal, further negotiations were held on or about 10 April Robert Condo served on the Union' s negotiating team during this bargaining session which resulted in a con- tract reached by the parties on that date. On redirect ex- amination, Condo testified that, as everyone was leaving the meeting and shaking hands, he said to Respondent's representative, Frobea, and union negotiators McCon- ville and Hartladge that he was shaking hands under pro- test and did not agree with the agreement reached by the other participants. On recross-examination, Condo testi- fied that he did not so tell Frobea, but so told McCon- ville. Heltien added that Frobea was there and heard it. I do not rely on Condo's conclusion that Frobea heard his comments to McConville because he does not explain how he knows that to be the case; his two statements are inconsistent, and his failure under repeated questioning to relate in even vague detail what transpired during the 3- hour negotiation meeting of 10 April indicates either faulty recollection or evasion, either of which detracts from the reliability of his testimony regarding the events of that day. Nevertheless, he was believably certain, and I find, that he did state his opposition to Respondent's proposal during the meeting in the presence of Respond- ent's negotiators and was not in agreement with the re- sults of the negotiation These results were placed before the various shifts of employees on or about 13 April Condo attended each of these shift meetings as a member of the negotiating team, but spoke neither for nor against ratification during these meetings. Nixon, Wascheck, and Haines did not speak at these meetings in opposition to ratification, as did other employees. The trust of the credible testimony is that these were more insistent in their opposition than the others, but there is no evidence that Respondent knew which of the employees opposed the contract in ratification meetings or who were the most insistent in their opposition The proposal was rati- fied, with about 20 employees voting against against rati- fication, and, as I have noted above, the Union and Re- spondent became party to a collective-bargaining agree- ment concerning the security employees at the installa- tion involved here. Condo, Nixon, Wascheck, and Haines all served as union shop stewards during their employment with Yoh. Condo was the Union's vice chairman for the bargaining unit in 1987 until he resigned that position about 2 weeks before 24 April 1987 Wascheck filed a class action grievance on 2 April 1987 seeking 2 hours' pay at time and a half from Yoh for item spent by its guards filling out applications and related documents for Respondent. He also acted as steward on five grievances filed by other employees of Yoh between March and November 1986. Haines filed seven grievances on his own behalf be- tween March and November 1986, and represented an- other employee on a grievance filed on November 1986. Nixon filed no grievance on his own behalf, but repre- sented others on two grievances filed in May and August 1986, respectively. There is some testimony from Was- check, Nixon, and Condo that grievances were processed and union business discussed by them with Brian East- 213 man, Yoh's acting project manager at the time, in an office shared by Eastman and John Robbins, Respond- ent's director of operations. Robbins agrees that for a time after he arrived at the site in early February 1987 he shared an office with Eastman, and that two or three grievances were discussed while he was present in the office. He denied any involvement in the discussions or any recollection of the identity of the union representa- tives involved. In this regard, I note that Condo testified that Robbins probably was not aware Condo had asked Eastman to have Robbins leave, even though Robbins was present in the office at the time . Robbins does recall that someone told him Condo took part in the negotia- tions and that he (Robbins) considered at one point, due to Wascheck's dress in coat and tie, that Wascheck may have been a candidate for union office. The date is not certain, but it appears Respondent commenced its employment process among Yoh employ- ees in early March 1987. The first step was the posting of notices establishing two dates for employees on each shift to file applications. That Respondent was amenable to a change of date on reasonable excuse is shown by Condo's testimony that although he was on vacation on 31 March, the date he was scheduled to apply, he was permitted by Respondent to file on 3 April 1987 At the time of filing, employees were also fingerprinted and re- quired to sign a release of their personnel records main- tained by Yoh On receipt of the Yoh files, Respondent by its agents, Program Manager Robert Young and Di- rector of Operations John Robbins, examined them and determined which employees they would hire and which they would not. Robbins testified it was decided not to hire Condo, Nixon, Wascheck, Michael Ottinger, or Robert Merritt. One hundred and five (105) Yoh employ- ees were hired by Respondent effective 29 April 1987, including several union officials and stewards. When Condo appeared for his scheduled job interview on 24 April, he was told by Robbins that Respondent would not hire him because of incidents in his work record. Robbins enumerated an altercation with a non- employee motorist on the access road to the facility, not wearing a hardhat, and sleeping on the job. Robbins as- serts the key reasons were the 2 November 1986 con- frontation with the motorist, which showed Condo had a quick temper, and a 22 February 1983 incident where Condo was observed with his eyes closed for 2 minutes, which Robbins concludes is an indication Condo was sleeping . Condo's personnel record at Yoh also shows Condo was not wearing a hardhat on 14 May 1983, and took his badge home on 22 February 1985. These later two incidents were not cited by Robbins as significant factors in his decision not to hire Condo. Mark Nixon does not recall the reasons other than at- tendance given by Robbins for rejecting his application. I therefore credit Robbins that he told Nixon of each and every incident set down in Yoh's files, which are in substance as follows: 23 April 1986-refusal to sign for a 24 minute late arrival at guard mount. 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17 October 1983-eating in the break trailer with his radio off [an intercom] when he was supposed to be on another post. 21 November 1983, 19 January, and 5 February 1984-reading newspaper on post. 24 May 1984-counselled to button his shirt. 26 May 1984-involved with controlled sub- stance. 30 Apn1 1983-another guard reported that after he signed in at a post, Nixon left and was not seen for the rest of the night. 18 August 1986-19 points2 for absence and tar- diness. 23 October 1985-drove through guard post bar- ricade with minor damage to his car March 1987-20 points for absenteeism. Robbins testifies that he rejected Nixon principally be- cause of the volume of incidents and the alleged involve- ment with a controlled substance which, as he recalls, was ownership of marijuana Robbins notes that he placed little reliance on absenteeism and tardiness unless it displayed an unacceptable level like that of Merritt who, among other things, was suspended seven times by Yoh for absence and tardiness Wascheck's record at Yoh reflected the following inci- dents, in substance- 26 August 1986-11 points for absenteeism. 05 May 1986-wearing a union badge on his uni- form. 25 August 1985-not wearing hard hat or safety glasses. 10 September 1984-not wearing safety glasses. 29 August 1984-no hard hat or safety glasses. 30 May 1984-playing cards in the break trailer. 12 February 1984-reading newspaper on post 06 January 1984-drove personally owned vehi- cle in an unauthorized area. 30 November 1982-took public service bicycle for a joy ride Robbins told Wascheck this work record was the reason he would not be hired, and testified that this decision was reached because of the number of items as well as the taking of the bicycle which, although may be a prank, displayed a personality and attitude which could be a major problem. The General Counsel submitted the Yoh work records of 13 employees whom Respondent hired. These records were included in the personnel documents examined by Robbins and Young when they were hiring Yoh employ- ees. An examination of these records shows that Re- spondent hired employees who had engaged in conduct similar to that presented as primary reasons for refusing to hire Condo, Nixon, and Wascheck Condo's sitting with his eyes closed for 2 minutes is not unlike the con- duct of Charles Maurer in 1984 when he was suspended for 5 days because he was leaning back in his chair with his eyes closed giving the impression he was sleeping. 2 Yoh utilized a point systems whereby an accumulation of sufficient points for absence or tardiness led to suspension and/or dismissal Thomas Davis was also suspended for 5 days in 1985 for nodding and inattentiveness on duty. Kenneth Coombs was warned for nodding on duty; no date shown. In 1985, Kenneth Stanton was warned for lying on the floor on his back, but not sleeping. Maurer, Davis, Coombs, and Stanton were all hired by Respondent. In the case of Nixon, Robbins stresses the volume of his misdeeds and his alleged involvement with a con- trolled substance. Kenneth Stanton was counseled 15 times on personal grooming, and was suspended 9 times for absence and lateness. Valerie Robinson was suspend- ed seven times for absence and lateness. Several other employees who were hired were suspended from four to six times for absence and lateness. Valerie Robinson, Thomas Davis, and Michael Dawson had all been warned for reading on post, Dawson twice, but they were hired. In this connection, Nixon was warned three times for reading on post. Thomas Davis and Michael Dawson left their posts without proper relief. Kenneth Coombs left his post without authorization Dianne Hunter was late to her assigned post on two occasions. These improper comings and goings of employees hired by Respondent are of the same genus, but not the same species, as Nixon's refusal to sign for late arrival, his leaving his post and not returning, and his eating in the break trailer when he was supposed to be at another post. There is no evidence that any other employee en- gaged in conduct equivalent to Nixon's driving through a guardpost barricade. With respect to Nixon's alleged involvement with a controlled substance, I note that an- other employee who was hired was accused of using drugs by an anonymous phone caller. As with Nixon, Wascheck's record of infractions is not as lengthy as those of some employees hired. There is, however, no evidence of conduct by any other employee paralleling Wascheck's joyride on the bicycle owned by the public service company. The hiring of employees who, while employees of Yoh, had been warned or otherwise disciplined for con- duct similar to that advanced as reason for the failure to hire Condo, Nixon, and Wascheck, and had engaged in other misconduct sufficient to require a warning or sus- pension, warrants viewing the reasons advanced for the refusals to hire with suspicion. Nevertheless, the General Counsel's case is deficient in terms of employer knowl- edge and hostility. It has not been shown that, with the single exception of Condo's opposition during negotia- tions, Respondent was aware of the alleged discrimina- tees' opposition to the negotiated collective-bargaining agreement. The opposition was, except in the case of Condo, voiced in ratification meetings limited to employ- ees and union officials. There is no evidence it was made known to, or could or should have been known by, Re- spondent in all the circumstances. Similarly, there is no persuasive evidence Respondent resented employee op- position to the contract, or the filing of grievances, or believed the alleged discriminatees were or might have been the most active grievance filers or processors. The other stewards and union officials were hired. So far as this record shows Respondent never uttered any antiun- ion statements or otherwise displayed any hostility WACKENHUT CORP toward the Union, its adherents, or employee union ac- tivities. To the contrary, Respondent made no discernible effort to evade its bargaining obligations, but, rather, promptly entered into bargaining with the Union result- ing in a collective-bargaining agreement opposed by a minority of bargaining unit employees Concurrently with the bargaining, Respondent accepted applications from Yoh employees who were represented by the Union, and subsequently hired all but a very few. Discrediting the reasons assigned for refusing to hire Condo, Nixon, and Wascheck would not prove the req- uisite unlawful motivation which must rest on the result of an evaluation of all the relevant evidence.3 There is no other evidence of unlawful motivation in this case. The rationale applicable is set forth in Briarwood Hilton, 222 NLRB 986 (1976); where the Board stated at 991: The employer's explanation for a discharge is a factor which is weighed in determining whether the action was unlawful. However, a feeble reason for the termination, alone, or together with evidence that the employer knew of the dischargee's union sympathies and was opposed to an ongoing organi- zational campaign, does not spell out an unlawful discharge. To find a violation of Section 8(a)(3) the evidence must permit a positive finding (which may be based on circumstantial evidence) that union ac- tivity was a contributing factor in the decision to discharge the employee. Suspicion that such was the case is not enough. I conclude the same reasoning is applicable to refusal to hire. Assuming, at the risk of being guilty of substituting one's own business judgment for that of the employer, that the reasons for refusing to hire Condo, Nixon, and Wascheck are feeble, there is no other evidence, circum- stantial or direct, of unlawful motivation. Furthermore, the proof of employer knowledge is somewhat less than persuasive. Briarwood Hilton was a far stronger case than this in terms of evidence. The alleged discriminatee, Turner, was known to be an active union adherent. Re- spondent was vigorously opposed to union organization, and committed an independent violation of Section 8(a)(1) of the Act. Finally, the reason for Turner's dis- charge was very weak. With all this, no violation was found. This case is not that strong. Accordingly, I con- clude and find that the General Counsel has failed to es- tablish a prima facie case that Respondent violated Sec- tion 8(a)(3) of the Act by refusing to hire Condo, Nixon, and Wascheck. Briarwood Hilton, supra; Raysel-Ide, Inc., 284 NLRB 879 (1987). The situation of Dwain Haines is completely different. His prior work record is not in issue. Respondent simply contends that Haines never filed an application for work with Respondent. Haines was off sick on 31 March, the date his shift was scheduled to apply. He knew before that date that 31 March was his date to apply. On 1 April, he asked Lieutenant Jerry Hand, a Yoh employee, if there would be a makeup date. Hand said he thought there would. On several other occasions before 20 April, 3 Garrett Flexible Products, 270 NLRB 1147, 1148 (1984) 215 Haines asked Hand when he would be able to file an ap- plication. Hand each time told him he had not heard anything. On 20 April, Haines again asked when he could file an application. Hand promised to call back and let him know. Hand did call back on 20 April and told Haines that Wackenhut would get back to Hand.4 On 24 April, Haines again contacted Hand who said he would contact the program manager to "find out anything" and would call Haines back. Hand did call Haines back that day, and told him that Brian Eastman, program manager, had said Haines should go see Wackenhut after work that day. Haines had not prior to that date talked to any Wackenhut representative regarding employment. Haines met with Robbins and Young between 2 and 2:30 p.m. that day. There is no serious disagreement between Rob- bins, Young, and Haines regarding what was said. I regard their testimony as complementary, and conclude the following is a fair summation of what happened at this meeting. Haines inquired about filing an application. Robbins responded that, because he had filed no applica- tion, Respondent had concluded Haines was not going to work for Wackenhut. Robbins further explained Re- spondent had reached its manning level, but would enter- tain Haines' application at its offsite office in Pennsville, New Jersey, when Respondent needed more people. Robert Young credibly testified that commencing about 3 April all applications were handled at the Pennsville office, none at the site. Haines has never applied, and the mere fact that Hash and Rizzo later applied and were hired in the next group is probative evidence of nothing. There is no probative evidence Respondent had not reached its manning level by 24 April, and no one else was hired for more than a month thereafter. I therefore credit Robbins. Its work force for 29 April was full when Haines showed up. Respondent explained that Na- thaniel Pierce, who did not file his application until 26 April, had been advised in March that although he would not be able to file his application with his shift, he did want to work for Respondent. Respondent decided to hire him on the basis of his personnel file, and Pierce was permitted to file the late application after he had in fact been told he would be hired. Two other employees were hired who filed applications on 22 April. The Re- spondent was lenient with these three employees and Condo with respect to filing applications, and the same might well have been true with Haines had he applied with Respondent before the employee complement had been completed. Haines, however, directed his inquires to Hand, an employee of Yoh for whose conduct Re- spondent is not responsible. Contrary to the General Counsel's assertion in his brief, Respondent is not respon- sible for Haines' failure to make application. He was not refused an application, but was advised future needs would be filled from applications filed at its Pennsville office where he elected not to go. Regarding the other three alleged discriminatees, there is insufficient evidence 4 Haines' testimony as to what Hand told him is hearsay received over Respondent's objection to explain further actions by Haines, but not for the truth of Hand's statement Hand did not testify I therefore do not find that Hand's statements constitute probative evidence of the content of communications to him by Respondent's agents 216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to support a finding that Respondent was hostile to any statutorily protected activity by Haines It is unfortunate that he was not given better advice by Hand, or that he did not himself inquire of Respondent before he did, but Respondent cannot be held responsible for either of these circumstances. There is no evidence Haines would have been rejected had he filed an application earlier, or had earlier let Respondent know he wanted to be considered I have credited Respondent that its manning level had been met when Haines first made known his interest. This alone would be sufficient to defeat the allegation Haines was unlawfully denied employment, but it is not necessary to rely on this factor because counsel for the General Counsel's failure to affirmatively prove unlawful motivation leaves him without a prima facie case that Section 8(a)(3) of the Act has been violated by the fail- ure to hire Haines. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 The Union is a labor organization with the meaning of Section 2(5) of the Act. 3. The General Counsel had not established by a pre- ponderance of the credible evidence that Respondent has violated the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed-' ORDER The complaint is dismissed in its entirety 51f no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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