Pinkerton'S Inc.

538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Pinkerton's Inc. and Charles F. Keller. Case 6-CA- 20171 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, HIGGINS, AND DEVANEY On December 28, 1988, Administrative Law Judge Irwin H. Socoloff issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The General Counsel filed an an- swering brief in opposition to the Respondent's ex- ceptions and 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,' and conclusions and to adopt the recommended Order. The Respondent excepts to the judge's finding that it violated Section 8(a)(3) and (1) of the Act by refusing to offer employment to the three al- leged discriminatees. In particular, the Respondent excepts to the judge's imputing to it Supervisor MacDonald's knowledge of the organizational ac- tivity of the alleged discriminatees at G. Services. We find no merit in this exception. Before the Respondent obtained the contract to provide security guard service at the USX Tower, the Respondent's predecessor, G. Services, provid- ed that service. MacDonald had been a supervisor for G. Services and was hired as a supervisor by the Respondent when it acquired the USX con- tract. The judge, in part, used MacDonald's knowl- edge of the alleged discriminatees ' activities as a basis for finding the Respondent had knowledge of those activities. We agree. Activities, statements, and knowledge of a supervisor are properly attrib- utable to the employer, 2 and here, the Respondent did not affirmatively establish such a basis for ne- gating the judge's imputation of MacDonald's knowledge to the Respondent. Similarly, the Respondent questions the judge's reliance on MacDonald's statement that the alleged discriminatees were not hired because of their union activities as a basis for determining the Re- ' 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 Cit. 1951) We have carefully examined the record and find no basis for reversing the findings 2 See Colson Equipment, 257 NLRB 78 (1981 ); Glenroy Construction Co., 215 NLRB 866 (1974). spondent's motive for failing to offer employment to the alleged discriminatees. However, before the Board will consider not relying on such statements, the Respondent must establish that the statements were not based on MacDonald's knowledge of the reasons for the Respondent's conduct. The Re- spondent failed to meet this burden. In any event, assuming arguendo, that the Re- spondent did not obtain information concerning or- ganizational activity at G. Service from MacDon- ald, the record establishes that the Respondent had numerous other sources for this information. For example, in April 1987, when the Respondent's of- ficials toured the USX Tower to obtain information for the Respondent's security guard services bid, notices of union activity, including election results, and a list of candidates for union stewards were prominently posted in the building. Thus, this evi- dence, coupled with the judge's finding that the Respondent's reasons for failing to hire the alleged discriminatees were "entirely unconvincing," war- rants an inference of the Respondent's knowledge of organizational activity, and ultimately a finding that the Respondent violated Section 8(a)(3) and (1) of the Act. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Pinkerton's Incorporated, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Mary Theresa Enyart, Esq., for the General Counsel. Jon Hogue, Esq., of Pittsburgh, Pennsylvania, for the Re- spondent. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. Upon a charge filed on July 6, 1987, by Charles F. Keller, an individual, against Pinkerton's Inc. (the Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a com- plaint dated August 27, 1987, alleging violations by Re- spondent of Section 8(a)(3) and (1) and Section 2(6) and (7) of the National Labor Relations Act (the Act). Re- spondent, by its answer, denied the commission of any unfair labor practices. Pursuant to notice, trial was held before me in Pitts- burgh, Pennsylvania, on November 30, 1987, at which the General Counsel and the Respondent were represent- ed by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence. Thereafter, the parties filed briefs which have been duly considered. 295 No. 62 PINKERTON'S INC. On the entire record in this case,' and from my obser- vations of the witnesses, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a Delaware corporation , has an office and place of business in Pittsburgh, Pennsylvania, where it is engaged in the operation of a security guard service. During the year ending June 30, 1987, Respondent, in the course and conduct of its business operations, de- rived gross revenue in excess of $ 1 million and per- formed services valued in excess of $50,000 in States other than the Commonwealth of Pennsylvania and pur- chased and received, at its Pennsylvania facilities, goods and services valued in excess of $50,000 directly from points outside the Commonwealth . I find that Respond- ent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION International Union, United Plant Guard Workers of America, Local 205 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent provides a security guard service to vari- ous customers located throughout the United States. Its Pittsburgh, Pennsylvania, district office, involved herein, covers portions of West Virginia , Ohio, and Pennsylva- nia and employs some 500 security guards, all of whom are unorganized. In the mid-May to mid-June 1987 period, Respondent obtained a contract to provide security services at the USX Tower in downtown Pittsburgh, beginning July 1, 1987. Previously, that function had been performed by G. Services, Inc., using a guard force that numbered ap- proximately 27. The Tower guards employed by that Company had engaged in organizational activity during the January to June 1987 period , resulting in a Board- conducted election held on April 10, and certification of the Union on April 23, 1987. When Respondent began performance of its contract at the USX Tower, it hired many of the security guards previously employed there by G. Services. However, it refused to hire applicants Charles Keller, James Probo, and Frederick Mehlmauer, who had also been employed at the Tower by G. Services, Inc. In the instant case, the General Counsel contends, and Respondent denies, that Respondent refused to offer em- ployment to Keller, Probo, and Mehlmauer because of their activities on behalf of the Union while employed by G. Services, in violation of Section 8(aX3) of the Act. Also at issue is whether Respondent violated Section 8(a)(1) of the Act by informing those individuals that Re- ' General Counsel's unopposed motion to correct certain errors in the transcript is granted Respondent's posthearing motion , opposed by Gen- eral Counsel, to stoke certain testimony and documentary evidence is denied. 539 spondent refused to employ then because of their union activities. B. Facts2 Charles Keller worked as a security guard at the USX Tower from October 1986 through June 30, 1987, when, as noted, Respondent took over the security guard func- tion theretofore performed by G. Services, Inc. Keller worked the night shift, from 11 p.m. to 7:30 a.m. James Probo was employed as a security officer at the Tower from December 3, 1986, until June 30, 1987. Originally hired to work the afternoon shift, from 3 p.m. to 11:30 p.m., Probo transferred to the night shift in January 1987. Frederick Mehlmauer's employment by G. Serv- ices, as a security guard at the Tower, was from October 1986, until June 30, 1987. Mehlmauer was also assigned to the night shift. At the end of January 1987, Keller initiated contact with the Union. Early in February, he and Mehlmauer met with Local 205's president, Kerry Lacey, and Keller obtained union authorization cards . Such cards were signed by Keller, Probo, and Mehlmauer . In addition, Keller, Probo, and employee Rashik distributed cards, at work, to other employees. On February 17, 1987, the Union filed a representation petition with the Board, seeking a unit of G. Services se- curity guards employed at the USX Tower. A hearing was conducted on February 26, attended, for the Union, by Keller, Mehlmauer and Rashik . Keller was the only employee to testify. Thereafter, on April 10, an election was held at the Tower, in split shifts, and Keller served as the Union's observer at the morning session. The Union won the election and, on April 23, it was certified. In mid-May, the employees elected Keller as their chief steward, and Probo and employees Simms and Wil- liams as shift stewards . Thereafter, on May 8 and 11, 1987, the Union sent letters to G. Services , requesting meetings for the purposes of collective bargaining. Keller's name was shown on the letters as the Union's chief steward. G. Services Security Manager Alan Palagy advised the employees on June 1, 1987, that the Company had lost its contract at the Tower and that, effective July 1, the security guard service would be provided by Pinkerton's. The employees were told that if they were interested in employment by the new company, they could apply for jobs at the Pinkerton's offices. Keller reported to Respondent's offices on June 5, 1987, where he completed an employment application and was interviewed by Respondent's personnel adminis- trator, Rosemary Regan. She asked him questions about his work experience and, also, inquired about his shift preferences. Keller stated that he preferred the night shift but that he was willing to work any shift. Regan told Keller that she would be in touch with him. Probo also appeared at Respondent's offices on June 5, com- pleted an application and was interviewed by Regan. She "The factfindings contained herein are based on a composite of the documentary and testimonial evidence introduced at trial . Where neces- sary, in order to reserve significant testimonial conflict, credibility resolu- tions have been set forth , infra. 540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told him that she was glad to see that he had a college degree in security administration and criminal justice and stated that someone with that sort of educational back- ground was welcome . In response to inquiry , Probo also stated a preference for the night shift, but said that he could work other shifts. Mehlmauer submitted his appli- cation to Respondent on June 12 . Questioned about shift preference, he stated that he was working the night shift at that time, but that any shift was possible. Laurie MacDonald served as the first -shift supervisor for G. Services through June 30, 1987. As of July 1, 1987, he became Pinkerton's assistant security manager. In that position, all three shift supervisors report to him. It is undisputed that MacDonald was a statutory supervi- sor when he worked for G. Services and that he is, now, a supervisor for Respondent within the meaning of the Act. On June 27, 1987, Probo asked MacDonald why he had not been hired by Pinkerton's. MacDonald said that he did not understand it as he had recommended Probo to Respondent "over and over again." Throughout June, MacDonald made similar comments to Keller. On July 6, Keller, Probo, and Mehlmauer approached MacDonald at the Tower and Keller asked if MacDon- ald had heard anything more about hiring . According to the testimony of Probo, MacDonald replied: [W]ell, guys, I got some bad news for you . It seems somebody has dropped a dime on you guys, and there is nothing more I can do . Mr. Tranelli, up- stairs, would love to hire you, he would like to have the experienced people in the building that know the building and know the job, but his hands are tied, somebody at the front office doesn't want you guys employed because you are union pushers, union organizers. . . . Pinkerton does not want that aggravation right now. Probo further testified that Keller then asked if MacDon- ald was telling them that they would not be hired be- cause of their union activities, and MacDonald stated, "that's about the size of it right now." Probo's testimony concerning this conversation was fully corroborated by Keller, while Mehlmauer's recollection of the conversa- tion was considerably less detailed . MacDonald, in his testimony, recalled speaking to Keller on July 6, but could not remember if Probo and Mehlmauer were also there. He testified that after Keller asked why he had not been hired MacDonald stated that he did not know and that "maybe somebody dropped a dime on you." Mac- Donald further testified that, at the time of the conversa- tion, he had no knowledge concerning the union activi- ties of the three individuals. Keller and Probo impressed me as truthful witnesses, in possession of clear recollections of the conversation of July 6. MacDonald, on the other hand, did not seem to me to be attempting truthfully to relate that conversa- tion. Moreover, MacDonald's claimed lack of knowledge of the employees' union activities is belied by undisputed evidence that he observed Keller acting as union observ- er on the day of the election, and that MacDonald was advised by Probo, in May 1987, that Probo had been elected third-shift steward. In addition, G. Services Secu- rity Manager Palagy testified that, during the organizing campaign, MacDonald attended G. Services' campaign strategy meetings at which Keller , Probo, and Mehl- mauer were clearly labeled as union supporters. In light of the above, I credit the testimony of Keller and Probo, discredit the testimony of MacDonald and find that on July 6, 1987, MacDonald told the employees that Re- spondent refused to hire them because of their union ac- tivities. On May 29, 1987, Respondent's personnel administra- tor, Rosemary Regan, placed an advertisement in a local newspaper, seeking 25 security guards for the USX Tower. The advertisement sought "mature individuals with excellent communication skills . . . height and weight must be commensurate." Thereafter, Regan inter- viewed individuals who responded to the advertisement, as well as the G. Services guards who applied for work with Respondent. In all, she hired some 25 security guards, 16 of whom had worked for G. Services. The record evidence is undisputed that Regan effectively made all hiring decisions. Regan testified that after conducting an interview and reviewing an individual's application she placed it in one of three piles . Pile 1 contained "the very good ones that I liked," pile 2, "the average" applicants, and pile 3, those "not for USX." Keller's responses to questions contained on the em- ployment application indicated that he had once been ar- rested, but had never been convicted of a crime. Regan testified that after interviewing Keller and reviewing his application she placed him in pile 1. She further testified that, at that point, she "thought he was excellent, excel- lent for the job, everything." However , according to Regan, she decided not to hire him when a routine check of police records revealed that in August 1986 Keller had been arrested for driving under the influence of alco- hol and, while not convicted, had been placed in a reha- bilitation program. Regan claimed that, in reaching that decision, she relied upon an undated and unsigned hand- written note contained in Keller's file, revealing the arrest, although the author of the note and its date of preparation were unknown to her. When confronted with the fact that on June 30, 1987, she hired Anthony Moore as a guard at the USX Tower, despite knowledge that Moore had been convicted of a crime, disorderly conduct, Regan testified that "that was a judgment call on my part." Mehlmauer, in his written application , stated that he was unavailable to work between the hours of 8 a.m. and 8 p.m. However, as noted, he orally informed Respond- ent, when he applied for work, that any shift was possi- ble. Regan placed a notation on the application that Mehlmauer "prefers 11-7:30" shift. She testified that, while she originally placed the application in pile 1, she decided not to hire Mehlmauer because his hours of availability were too limited and she "wanted someone who could work various shifts ." Yet, Regan conceded that on June 30, 1987, she hired applicant Paul Pitassi, despite the fact that Pitassi stated on his application that, because of school commitments , he could not work be- tween 8 a.m. and 4 p.m., thus making him unavailable to PINKERTON'S INC. 541 work the morning and afternoon shifts. Indeed, Pitassi testified that on June 15 he orally advised Regan that he could work the night shift only, and that Regan stated that "there was no problem with that." When, during her testimony , Regan was asked to explain the apparent- ly disparate treatment of Mehlmauer and Pitassi, she stated that Pitassi "just seemed to fit the image." With respect to Probo, Regan testified that she placed his application in pile 2 or pile 3 because his height, 5 feet and 7 inches, and weight, 275 pounds, were not properly proportioned. Yet, despite this factor, obvious to Regan at the interview, she continued to process Probo's application by conducting a police record check and contacting his references . While Regan made various notations on this and other applications, she made no no- tation on the Probo application concerning height and weight. Regan's supervisor, Jay Crawford, Pinkerton's district manager, testified that at the time that hiring decisions were made he and Regan were unaware that the G. Services employees had engaged in organizational activi- ties. He stated: ed him on his qualifications and, following the interview, she continued to process his application. That action strongly suggests, contrary to Regan's testimony, that Probo's height and weight did not , in Respondent's view, disqualify him for continued employment as a security guard at USX Tower. The record evidence reveals extensive union activities by Keller, Probo, and Mehlmauer. Respondent had knowledge of, and bore animus toward, those activities, as revealed by MacDonald's statement to the three indi- viduals. Further, Respondent has advanced entirely un- convincing reasons for its refusal to hire them . The evi- dence of disparate treatment, in particular, persuades me that the reasons advanced for the failures to hire are pre- textual. I find and conclude that , as revealed in MacDon- ald's July 6, 1987 conversation , with the individuals in question, Respondent refused to hire Keller, Probo, and Mehlmauer, on or about July 1, 1987, because of their union activities, in violation of Section 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE There was no mention of a union with anybody at anytime. And, very honestly, if I might add, if there was, why would I hire the people if I thought I was going to, you know, assume a union? C. Conclusions Based on the credited testimony of Keller and Probo, I find that, on July 6, 1987, Respondent, by Supervisor MacDonald, violated Section 8(a)(1) of the Act. On that date, as set forth in the statement of facts, MacDonald informed Keller, Probo, and Mehlmauer that Respondent refused to employ them because of their union activities. As further shown in the statement of facts, Laurie MacDonald, while a supervisor for G. Services, Inc., ac- quired knowledge of the union sentiments and extensive union activities of Keller, Probo, and Mehlmauer. He carried that knowledge with him when he became a high-level supervisor for Respondent. That knowledge is imputable to Respondent. McCain Foods, 236 NLRB 447 (1978). By MacDonald's statement of July 6, Respondent admitted to Keller, Probo, and Mehlmauer that it would not hire them solely because they were "union pushers." In these circumstances, General Counsel's prima facie showing of unlawful refusals to hire is a very strong one. Regan's testimony itself establishes that Respondent re- garded Keller and Mehlmauer as among the best quali- fied of the applicants . Her contention that she decided not to hire Keller because he had once been arrested for driving under the influence of alcohol, is difficult to be- lieve in light of her contemporaneous decision to hire ap- plicant Moore, with knowledge that Moore had been convicted of disorderly conduct. Indeed, at trial, Regan could not draw a meaningful distinction between the two cases. Likewise, Regan's claim to have rejected Mehl- mauer because he was available only for the night shift is belied by her contemporaneous decision to hire Pitassi who had explicitly informed her that he could not work shifts other than the night shift. After meeting Probo, and observing his height and weight , Regan compliment- The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close , intimate, and substantial relationship to trade, traffic, and commerce among the several states and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Pinkerton's Inc. is an employer engaged in com- merce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, United Plant Guard Workers of America, Local 205 is a labor organization within the meaning of Section 2(5) of the Act. 3. By informing employees that Respondent refused to employ them because of their activities on behalf of the Union, Respondent engaged in unfair labor practice con- duct within the meaning of Section 8(a)(1) of the Act. 4. By refusing to hire Charles Keller, James Probo, and Frederick Mehlmauer, because of their activities on behalf of the Union, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 542 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- ed3 ORDER The Respondent, Pinkerton's Inc., Pittsburgh, Pennsyl- vania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Informing employees that Respondent refused to employ them because of their activities on behalf of the Union. (b) Refusing to hire employees because of their activi- ties on behalf of the Union. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Charles Keller, James Probo, and Frederick Mehlmauer immediate employment in the positions for which they applied or, if those jobs no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges. (b) Make those employees whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against them . Backpay shall be computed as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).4 (c) Expunge from its files any reference to the refusals to hire and notify Keller, Probo, and Mehlmauer, in writing, that this has been done. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records , timecards, personnel records and reports and all other records nec- essary to analyze the amount of money due under the terms of this Order. (e) Post at its Pittsburgh, Pennsylvania facility, copies of the attached notice marked "Appendix."e Copies of a If 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 4 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S C. § 6621 Interest accrued before January 1 , 1987 (the effective date of the amendment), shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). s 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 Nation- the notice, on forms provided by the Regional Director for Region 6, after being signed by Respondent 's author- ized representative, shall be posted by it immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 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 or- dered us to post and abide by this notice. WE WILL NOT inform employees that we refused to hire them because of their activities on behalf of the Union, International Union, United Plant Guard Workers of America, Local 205. WE WILL NOT refuse to hire employees because of their activities on behalf of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Charles Keller, James Probo, and Frederick Mehlmauer immediate employment in the po- sitions for which they applied or, if those jobs no longer exist, in substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges and WE WILL make them whole for any loss of earnings and other benefits resulting from the discrimination against them, less any net interim earnings, plus interest. WE WILL expunge from our files any reference to the discriminatory refusals to hire and notify the effected employees, in writing, that this has been done. PINKERTON'S INC.