Gainesville Mfg. Co.

National Labor Relations Board - Board Decisions

Aug 23, 1984

271 N.L.R.B. 1186 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gainesville Manufacturing Co., Inc. a Subsidiary of
Spencer Industries, Inc. and International
Ladies' Garment Workers' Union, AFL-CIO.
Case 10-CA-19132
23 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 13 September 1983 Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting 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 and
conclusions, 3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Gainesville
Manufacturing Company, Inc., a subsidiary of
Spencer Industries, Inc., Gainesville, Georgia, its
' The handbilling in this case occurred on 13 October 1982, not 1983,
as incorrectly set forth in the attached decision.
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.
However, in affirming the judge's discrediting of employee Bagwell's
testimony, we find it unnecessary to rely on the judge's characterization
of Bagwell as an "officious intermeddler" who attempted to "curry favor
of Respondent." There is scant evidence in the record to support such a
characterization. Instead, we rely on the following factors: Bagwell's tes-
timony is substantially inconsistent with that of the other five witnesses
who testified about the events in question; according to Bagwell, he was
"guessing" when he estimated that one of the union representatives ad-
vanced "at least 75 feet" onto the Respondent's property; and by his own
estimation, Bagwell observed the incident in question from a distance of
at least 80 yards.
In affirming the judge's finding, in fn. 3 of his decision, that the Re-
spondent did not dispute the existence of the public right-of-way along
the road in front of the Respondent's plant, we note not only the ac-
knowledgement made by the Respondent's supervisor, Castleberry, to
union representative Sala, of the existence of this right-of-way, but also
the testimony of the Respondent's manufacturing manager, Tanner, that
he did not dispute the existence of the right-of-way, and that his position
was that if the union representatives went past the right-of-way, then
they would be trespassing.
s Member Dennis agrees with the judge's conclusion that the Respond-
ent violated Sec. 8(aXI) of the Act by engaging in surveillance of its em-
ployees' union activities, but relies solely on the fact that the Respondent
observed the handbilling from approximately 2 to 3 feet away after at-
tempting to block the distribution by stepping between the union agents
and the exiting employees' cars.
271 NLRB No. 191
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Atlanta, Georgia, on July 14-15,
1983. The charge was filed on April 1, 1983, by Interna-
tional Ladies' Garment Workers' Union, AFL-CIO (the
Union or the Charging Party), alleging violations of Sec-
tion 8(a)(1) of the National Labor Relations Act (the
Act) by Gainesville Manufacturing Co., Inc., a Subsidi-
ary of Spencer Industries, Inc. (Respondent or the Com-
pany). A complaint in the case was issued by Region 10
of the National Labor Relations Board (the Board) on
April 29, 1983, and Respondent filed a timely answer to
the complaint.' The issue presented by the complaint
and answer is whether Respondent on October 13, 1983,
unlawfully (a) prohibited its employees from joining or
engaging in activities on behalf of the Union after work
and off company property, and (b) closely watched the
union activities of its employees.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the position and arguments of the parties at the hearing
and the written briefs filed by the General Counsel and
the Charging Party, I make the following
FINDINGS OF FACT
1. JUSRISDICTION
Respondent is a Georgia corporation with an office
and place of business in Gainesville, Georgia, where it is
engaged in the manufacture of apparel. During the calen-
dar year preceding issuance of the complaint the Re-
spondent sold and shipped from its Gainesville facility
finished products valued in excess of $50,000 directly to
customers located outside the State of Georgia. The
complaint alleges, Respondent by its answer admits, and
I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
The complaint also alleges, Respondent at the hearing
stipulated, and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Testimony
The violations of the Act attributed to Respondent
grow out of the events on the afternoon of October 13,
' This case was initially set to be heard on a calendar-call basis in con-
nection with Hoschton Garment Company, A Subsidiary of Spencer In-
dustries, Inc., Cases 10-CA-18741, and 10-CA-18618. At the opening of
the hearing in those cases, the General Counsel moved to consolidate
such cases with the instant case, it appearing that the cases shared wit-
nesses, legal representation, and legal issues. The General Counsel's
motion was granted as was the further motion to sever the cases prior to
issuance of a decision in the cases. Accordingly, an Order severing the
instant case from the Hoschron cases issued on September 2, 1983.
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GAINESVILLE MFG. CO.
1983, when three representatives of the Union, James B.
Sala, Gary Adler, and John Montgomery, engaged in
handbill distribution to Respondent's employees at the
two driveway entrances to Respondent's plant. Respond-
ent's plant faces an industrial road called Memorial Park
Road, but sits off the road an estimated distance of from
200 to 400 feet. Two parallel, paved driveways separated
by a distance equal to the width of the plant run from
Memorial Park Road down each side of the plant and
are utilized by employees entering and exiting the plant
area by motor vehicle. They are joined only by a park-
ing area across the front of the plant at the main plant
entrance. The plant premises are not fenced in any
manner and no gates exist on the driveways. For the
purposes of this decision the driveway entering the plant
premises on the left as one faces the plant from Memorial
Park Road shall be referred to as driveway A, while the
parallel driveway to the right shall be referred to as
driveway B.
International Representative Sala testified that he,
Adler, and Montgomery went to Respondent's plant to
distribute handbills to employees arriving shortly before
4 p.m., the normal employees' quitting time. They
parked their car across Memorial Park Road in front of
the plant and Sala took up a position at the entrance of
driveway A, while Adler and Montgomery took up posi-
tions at the entrance of driveway B. Having anticipated
that Respondent might raise an issue with respect to in-
trusion on its property rights through the handbilling 2
the union representatives, according to Sala's testimony,
had checked with county officials and had found that a
right-of-way existed along Memorial Park Road in front
of Respondent's plant. The right-of-way was described
by the officials, according to Sala, as either being 30 feet
wide so as to include 5 feet either side of the paved road,
or running between the ditches on either side of the
paved road.3
Sala testified that as he, Adler, and Montgomery took
up their respective positions, officials of Respondent
came out of the plant and approached them. He identi-
fied Manufacturing Manager Bernard Tanner as going to
the position of Adler and Mongomery while Respond-
ent's supervisor, Jerry Castleberry, and head mechanic,
Mike McEver, came to Sala's position. According to
Sala, Castleberry told him he was trespassing, and he
asked Sala to leave. Sala refused saying he was there to
leaflet the employees, and he intended to stay within the
5-foot right-of-way. Castleberry acknowledged there was
a right-of-way. Nevertheless, as the employees began to
exit the drive, Castleberry attempted to impede Sala in
giving leaflets to the cars. However, after Sala's protesta-
tion that Castleberry was violating workers' rights, Cast-
leberry stepped aside a few feet and continued to watch
2 Such anticipation was based on experience at Hoschton Garment
Company, a related company, on October 5 when the union atempted to
handbill at that plant.
3 Respondent herein did not dispute the existence of the right-of-way
or either description of the right-of-way related by Sala. There is some
dispute in the record as to whether a ditch existed on Respondent's side
of the road. Photographs of the area received in evidence reveal at least
a depression on Respondent's side of the road, whether or not it may be
referred to as a ditch.
Sala distribute the leaflets. From time to time Castleberry
remarked that Sala was trespassing.
Near the end of the leafleting a policeman, called by
Respondent, arrived and pulled his vehicle into one of
the drives where he consulted with Tanner, Castleberry,
and McEver. The policeman then proceeded to Sala's
position at driveway A where Sala, and also Adler who
apparently had come over from the B driveway, advised
the policeman that they were within the right-of-way.
Despite Tanner's request that the union agents be re-
moved, the policeman left remarking that since there was
no apparent problem he was not going to remain and
listen to the parties argue. He thereupon left, and the
leafleting being completed at the point, the union agents
left. Sala maintained that he remained with the right-of-
way during all the handbilling.
Sala's testimony was largely substantiated by Adler.
Adler added that when he was approached by Tanner as
Adler started handing out the leaflets Tanner told Adler
he was trespassing, that they did not need a union at
Gainesville and that Adler should leave Respondent's
property. At times Tanner stepped between Adler and
exiting cars. Also during the course of the handbilling
Tanner accused Adler several times of going too far into
the drive, but Adler testified herein that he constantly re-
mained within the 5-foot right-of-way. He specifically
denied that he went as far into the drive as the second
car in line to exit.
Respondent presented four witnesses to dispute the
extent the union agents entered on Respondent's prem-
ises. Thus, Tanner generally testified that the union rep-
resentatives entered the drives by 1-1/2 car lengths.
Castleberry testified he first observed Sala about 30 feet
inside driveway A, and that when Sala first began dis-
tributing leaflets, he did so at a point about 15 feet from
the junction of the drive and Memorial Park Road. Fur-
ther, Castleberry claimed that, on at least one occasion,
Sala went down as far as the third car in line to exit to
give out a handbill.
Cheryl Ann Parks, an employee of Respondent, testi-
fied that Sala gave her a leaflet when she was about the
third car in line to exit. He then proceeded to the car
behind her. Parks testified she did not observe Castle-
berry in the area at the time. Another employee, Alec
Bagwell, testified that from within the plant he observed
Adler at driveway A come approximately 75 feet down
the drive toward the plant to distribute leaflets.
The record does not establish that Respondent had a
no-solicitation or no-distribution rule applicable at the
Gainesville facility. Moreover, there was no evidence
that Respondent posted its premises against trespassing.
Finally, there is no contention here that handbilling
herein presented a traffic problem or hazard.
B. Arguments and Conclusions
The testimony of the witnesses presented with respect
to the handbilling on October 13 cannot be reconciled. If
one believes the General Counsel's witnesses, Sala and
Adler, no trespassing occurred. Conversely if one be-
lieves Respondent's witnesses, the union agent entered
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
onto Respondent's premises substantially beyond the
limits of the Memorial Park Road right-of-way.
Both Sala and Adler impressed me as truthful wit-
nesses concerned with an accurate presentation of the
facts as they recalled them. I am convinced that they
made an honest effort to stay within the road right-of-
way during the leafleting. Moreover, it is improbable,
based on their prior experience with Tanner at Hosch-
ton, that they would have taken the trouble to ascertain
the existence of and the extent of the right-of-way if, in
fact, they intended to ignore it.
Weighed against the testimony of Sala and Adler, Tan-
ner's testimony appears more generalized and it must be
considered in the context of Tanner's admitted opposi-
tion to the Union. I found Tanner less convincing than
Sala and Adler and, accordingly, I do not credit him
where he is contradicted by either of them.
Castleberry, too, I found less convincing. Castleberry
maintained that he stayed with Sala for a period of 15-20
minutes at a point 30 feet inside the drive. While he
claimed he moved out of his tracks occasionally he testi-
fied that he maintained that position generally. Yet pho-
tographs taken by Montgomery and received in evidence
reflect Castleberry and McEver observing Sala from a
point which appears to be substantially less than 30 feet
inside the drive. Although these same photographs do
not establish the respective positions of the parties for
the entire time of the handbilling, they tend to support
Sala's testimony that he handbilled generally within 5
feet of the edge of Memorial Park Road.
Bagwell's testimony I also found unpersuasive. Bag-
well's identification of Adler as coming down 75 feet
inside of driveway A at one point and even talked to the
policeman at that location, no other witness testified that
Adler even handbilled at that location. Moreover, Bag-
well was an officious intermeddler who sought to inject
himself into the situation to curry favor of Respondent
by leaving the plant while on duty and without authori-
zation to join Tanner in the handbilling area.
Parks was a more likely impartial witness. She admit-
tedly, however, was concerned with traffic and the cars
in front of her and it appeared that she was moving at
the time the leaflet was given her by Sala. Moreover, she
admittedly did not even see Castleberry or McEver as
she passed out the entrance, although they were clearly
there at the start of the handbilling. Parks apparently
was one of the first ones out and testified she usually was
the first one out. I am not persuaded therefore that
Parks' observations were entirely accurate regarding the
extent of Sala's entry into driveway A.
Considering all the foregoing, and the record as a
whole, I find the testimony of Sala and Adler the most
credible and accurate.
The General Counsel and Charging Party contend that
there was no trespassing by the union representatives and
therefore Respondent's efforts to exclude them from
handbilling on public property violated employee rights
under Section 8(a)(l) of the Act. Moreover, the constant
and close observation of the handbilling is urged to con-
stitute unlawful surveillance also violative of Section 7 of
the Act. Respondent's defense is based on its contention
that there was not only a likelihood of trespassing by the
union agents but an actual trespass which warranted all
its actions in the interest of protection of its property
rights. In this regard Respondent relies on NLRB v. Bab-
cock & Wilcox Co., 351 U.S. 105 (1965), wherein the Su-
preme Court held that an employer may bar distributions
on its premises by nonemployee union organizers so long
as the union has other means of communicating with em-
ployee and the employer does not discriminate against
the union by allowing other distribution. It is to be noted
that there was no evidence presented herein to establish
either that the Union lacked other reasonable means of
communication or that Respondent discriminated against
the Union by allowing other distributions.
Based on the credited evidence I find that there was
no trespassing upon Respondent's premises, and that the
handbilling took place on a right-of-way for a public
road. It is clear also from the credited evidence, and I
find, that Respondent asked the union agents to leave,
and even sought their removal by calling the police.
Moreover, based on Sala's credited testimony, Castle-
berry even sought initially to impede the handbilling by
physically stepping in front of Sala. Tanner, according to
Adler's credited testimony, also did the same thing. This
action by Respondent unquestionably violated Section
8(a)(1) of the Act for it interfered with employee rights
to receive union literature as the complaint alleges. See
Schlegel Oklahoma, 250 NLRB 20 (1980), enfd. 644 F.2d
842 (9th Cir. 1981); Winnett, Inc., 135 NLRB 1305
(1962). Cf. Hutzler Bros. Co., 241 NLRB 914 (1979).
In addition, Tanner's presence with that of Respond-
ent's other representatives, Castleberry and McEver,
close to the union representatives for a period of 15 to 20
minutes during the course of the handbilling when cou-
pled with Tanner's admitted opposition to the Union, I
conclude, intended to interfere with the handbilling and,
thus, the receipt by employees of such handbills. Wheth-
er or not intended, Respondent's conduct had a clear and
obvious tendency to interfere with employee receipt of
the union literature. It is the tendency of Respondent's
conduct to be coercive which determines the violation
and not the actual effect. See, e.g., NLRB v. Huntsville
Mfg. Co., 514 F.2d 723, 724 (5th Cir. 1975); NLRB v.
Camco Inc., 340 F.2d 803, 804 fn. 6 (5th Cir. 1965). Ac-
cordingly, I find the close presence of the representatives
of Respondent during the handbilling constituted obvious
overt and intended surveillance of union activities on a
public road right-of-way. Respondent, therefore, further
violated Section 8(a)(l) in this regard as contended by
the General Counsel and Charging Party. Reeves South-
eastern Corp., 256 NLRB 574 (1981).
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(l) of the Act on
October 13, 1983, by attempting to prohibit union hand-
bill distribution to its employees on a public road right-
of-way and by watching and interfering with employee
receipt of union handbill distributions.
1188
GAINESVILLE MFG. CO.
4. The violations of the Act above in paragraph 3 con-
stitute unfair labor practices affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act to
include the posting of an appropriate notice to its em-
ployees.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
The Respondent, Gainesville Manufacturing Co., Inc.,
a Subsidiary of Spencer Industries, Inc., Gainesville,
Georgia, its officers, agents, successors, and assigns, shall
i. Cease and desist from
(a) Attempting to prohibit handbill distributions to its
employees on a public road right-of-way by International
Ladies' Garment Workers' Union, AFL-CIO, or any
other labor organization.
(b) Surveillance of, or interference with, its employees'
receipt of handbills distributed by International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor
organization.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Post at its Gainesville, Georgia place of business
copies of the attached notice marked "Appendix." 6
Copies of the notice, on forms provided by the Regional
Director for Region 10, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent 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 the Respond-
4 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.
I 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."
ent to 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 Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full hearing in which both sides had an opportu-
nity to present evidence, the National Labor Relations
Board has found that we have violated the Act and has
ordered us to post this notice.
The Act gives all employees these rights.
To engage in self-organization
To form, join, or help Unions
To bargain collectively through representatives
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all these things.
WE WILL NOT attempt to prohibit handbill distribution
to our employees, on a public road right-of-way by
International Ladies' Garment Workers' Union, AFL-
CIO, or any other labor organization.
WE WILL NOT engage in surveillance of, or interfer-
ence with, our employees' receipt of handbills distributed
by the above-named or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights under Section 7 of the Act as listed above.
GAINESVILLE MANUFACTURING CO., INC.,
A SUBSIDIARY OF SPENCER INDUSTRIES,
INC.
1189