Maclean-Dixie

National Labor Relations Board - Administrative Judge Opinions

Sep 27, 2007

10-CA-036799 (N.L.R.B. Sep. 27, 2007)

JD(ATL)–31–07
Birmingham, AL
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
5
MACLEAN POWER SYSTEMS
d/b/a MACLEAN–DIXIE
10
and CASE 10–CA–36799
UNITED STEELWORKERS OF
AMERICA, AFL–CIO–CLC
15
Gregory Powell, Esq., for the General Counsel
Mr. Samuel H. Penn, Sr., for the Charging Party 20
Mitchell G. Allen, Esq. (Maynard, Cooper &
Gale, PC), for the Respondent
25
BENCH DECISION AND CERTIFICATION
Keltner W. Locke, Administrative Law Judge: I heard this case on August 17, 2007 in
Birmingham, Alabama. After the parties rested, I heard oral argument and, on August 20, 2007,
issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and Regulations, 30
setting forth findings of fact and conclusions of law. In accordance with Section 102.45 of the
Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix A,” the portion
of the transcript containing this decision.1
In the attached bench decision, I concluded that the presence of Respondent’s managers 35
near union handbillers on April 23, 2007 did not violate the Act. The following legal analysis
supplements that in the bench decision.
Additional Legal Analysis
40
As discussed in the bench decision, this case involves the unexpected appearance of two
Union organizers passing out handbills at the gates of Respondent’s plant. Neither of these
handbillers was employed by Respondent and neither had applied to become an employee of
Respondent. Strictly speaking, therefore, management’s observation of these two individuals

1 The bench decision appears in uncorrected form at pages 177 through 184 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–31–07
2
does not constitute unlawful surveillance of employees. See Wackenhut Corporation, 348
NLRB No. 93, slip op. at 2 (December 19, 2006).
However, the Complaint alleges that Respondent engaged in surveillance of employees’
responses to the handbilling activity. In other words, management might infer something about 5
an employee’s union sympathies from whether the employee accepted or declined the handbill.
Thus, in Arrow Automotive Industries, 258 NLRB 860 (1981), the Board found that an employer
violated Section 8(a)(1) by its surveillance of handbilling even though none of the handbillers
was an employee of the respondent.
10
The Complaint also alleges that Respondent interfered with the rights of employees to
receive handbills. The government bases this allegation on the presence of the managers close to
the handbillers. The government also contends that one manager, Anthony Popwell, came
between the handbiller and a driver and did so in four instances. Based on the credited evidence,
I find that Plant Manager Popwell stood about 10 to 15 feet from Organizer Penn and that 15
Human Resources Manager Dennis Veigl stood a similar distance from Organizer Brown. The
credited evidence does not establish that either manager came between a handbiller and a driver.
The record does not establish that the organizers trespassed on Respondent’s property. In
fact, the witnesses expressed some uncertainty about exactly where Respondent’s property 20
began. The handbillers assumed that certain landmarks, such as power lines, would be located
on public right–of–way, and, based on those assumptions, did not cross over onto what they
believed to be Respondent’s property.
In the absence of more specific evidence regarding the location of the handbillers, I will 25
presume that they limited their activities to public right–of–way. However, this right–of–way
did include the access drives leading out through the gates and terminating in Red Hollow Road.
Respondent’s employees used these drives both in coming to the plant and in leaving it.
The record does not establish precisely when Plant Manager Popwell and Human 30
Resources Manager Veigl approached the two Union organizers, but it was some time between
about 1:15 and 2:00 p.m., when the afternoon shift began, greatly increasing traffic flow into the
Respondent’s property. Initially when Popwell arrived at Gate 2, Penn was standing in the
middle of the drive, close to the gate. Although the evidence does not establish whether or not
Penn actually was on Respondent’s property, his position in the middle of the drive interfered 35
with the flow of traffic into the plant area. (In making this finding, I have relied in part on the
diagram prepared by Plant Manager Popwell and received in evidence as Board Exhibit 1, and on
Popwell’s testimony, which I credit.)
When Popwell initially told Penn to move, Penn replied that he had a right to be there. 40
At that point, Popwell said that if Penn would not move, he would call the sheriff. From the
record, it is not clear whether Penn moved before or after Popwell began to call the sheriff’s
department on his cellphone. Although Popwell reported the presence of the handbillers to the
sheriff’s department, he did not request their arrest and did not threaten the handbillers with
arrest. No employee of Respondent heard either Popwell’s discussion with Penn or his call to 45
the sheriff’s department. After the handbillers left, Popwell again called the sheriff’s department
to report that they were gone.
JD(ATL)–31–07
3
In their testimony, the organizers tried to downplay any traffic congestion caused by the
handbilling. However, I find that the presence of the handbillers at shift change did indeed cause
a backup in traffic because the handbilling slowed the entry of vehicles onto Respondent’s
property. Penn’s testimony, quoted in the bench decision – that Popwell opened the closed side 5
of the gate to “alleviate the bottleneck of cars trying to get into the plant” – implicitly recognizes
the traffic problem.
As noted above, although Penn testified that Popwell came between him and one of the
cars he was trying to approach, and did this four times, I have not credited this testimony. 10
Rather, I have found that Popwell did not interfere with the handbilling in any way, but instead
limited his activity to motioning to drivers to keep going towards the plant.
Neither Popwell nor Veigl photographed the handbilling, and neither manager took notes
concerning which employees accepted a handbill. On one occasion, an employee approached 15
Popwell and asked what was happening. Popwell ascertained from the employee that he was on
duty and told him to return to work. Before the employee left, he walked to the Union organizer
and received a handbill.
The record contains no evidence of antiunion animus and I conclude that such animus did 20
not motivate the actions of either Popwell or Veigl. Similarly, I find that Popwell notified the
sheriff’s department because he was concerned about traffic backups caused by the handbilling,
and not because of hostility to the Union. However, as noted in the bench decision, the presence
or absence of animus does not determine whether an employer’s action constitutes unlawful
interference under Section 8(a)(1) of the Act. In determining whether particular activity violates 25
Section 8(a)(1), the Board applies an objective standard to decide whether the activity reasonably
would interfere with, restrain or coerce employees in the exercise of their Section 7 rights. See,
e.g., Scripps Memorial Hospital Encinitas, 347 NLRB No. 4 (May 15, 2006).
Managers’ Presence During Handbilling30
The Board has long held “that management officials may observe public union activity,
particularly where such activity occurs on company premises, without violating Section 8(a)(1)
of the Act, unless such officials do something out of the ordinary.” Arrow Automotive
Industries, above, citing Metal Industries, Inc., 251 NLRB 1523 (1980).35
The General Counsel bears the burden of proving that the management officials
observing public union activity have done “something out of the ordinary.” In the present case,
the General Counsel elicited testimony from the managers that directing traffic was not an
ordinary part of their job duties. 40
The General Counsel further argues that the presence of high–level managers directing
traffic inherently chilled the exercise of Section 7 rights. If Respondent simply had been
concerned about traffic backup, the General Counsel contends, it would have sent security
guards out to direct the traffic rather than use managers for that purpose.45
JD(ATL)–31–07
4
However, the General Counsel has not established that Respondent ordinarily uses
security guards to direct traffic coming in and out of the plant. Indeed, the government hasn’t
shown that anyone directs traffic – or that anyone needs to direct traffic – except in those unusual
circumstances when something has caused a bottleneck at the gates.
5
Although the record suggests that Respondent had security guards on the premises at
night, no evidence establishes that they were on duty at 2 o’clock in the afternoon.
Notwithstanding the General Counsel’s argument, I can infer nothing from the absence of
security guards at the gates.
10
As a practical matter, Respondent did not have time to hire or reschedule the work shifts
of security guards. Respondent received no advance notice that the handbillers would be
coming, and management had to decide on the spot how to handle the resulting traffic problem.
To say now, in hindsight, that management should have sent someone else out to the gates
amounts to second guessing. 15
Considering that the record fails to establish that Respondent customarily posts security
guards at its gates at 2:00 p.m., the presence of such uniformed personnel at that time of day
arguably would be just as “out of the ordinary” as the presence of managers. If Respondent’s
representatives at the gates had been security guards rather than managers, could the General
Counsel then argue that this “out of the ordinary” action constituted an unfair labor practice?20
The fundamental inquiry must concern what effect the managers’ presence reasonably
would have on employee rights. Obviously, not everything which is “out of the ordinary” chills
the exercise of such rights. Instead, the Board has focused on unusual actions which reasonably
would communicate a message to employees discouraging them from protected activity. 25
Accordingly, the phrase “out of the ordinary,” when used to test the legality of employer action,
must be treated as a term of art, its definition firmly rooted in Board precedent.
In Aladdin Gaming, LLC, 345 NLRB No. 41 (August 22, 2005), the Board stated the
general rule that a supervisor’s “routine observation of employees engaged in open Section 7 30
activity on company property does not constitute unlawful surveillance,” and the exception:
“However, an employer violates Section 8(a)(1) when it surveils employees engaged in Section 7
activity by observing them in a way that is ‘out of the ordinary’ and therefore coercive. Sands
Hotel & Casino, San Juan, 306 NLRB 172 (1992), enfd. sub nom mem S.J.R.R., Inc. v. NLRB,
993 F.2d 913 (D.C.Cir. 1993).” The Board then listed three factors to be considered: “Indicia 35
of coerciveness include the duration of the observation, the employer’s distance from its
employees while observing them, and whether the employer engaged in other coercive behavior
during its observation.”
Such “other coercive behavior” can take a number of forms. For example, in Kenworth 40
Truck Co., 327 NLRB 497, 501 (1999), the supervisor observing the handbilling repeatedly and
erroneously accused the handbillers of trespassing and, sometimes shouting, ordered them off
company property.
In Arrow Automotive Industries, above, the Board considered another factor: The 45
number of supervisors present. More specifically, it considered whether the number of
JD(ATL)–31–07
5
supervisors present exceeded the number needed to perform legitimate functions:
Soon after the handbilling began. . .11 of Respondent’s supervisors lined up in varying
numbers near each of the three gates, observing employees as they drove past the union
handbillers. The testimony is unequivocal that the presence of the supervisors was highly 5
unusual, and we agree with the Administrative Law Judge’s conclusion that the
supervisors’ presence was “deliberately calculated. . .to show and demonstrate
observation, in numbers and force. . .” While we also agree with the Respondent that it
has a legitimate interest in preserving the integrity of its property, we find that its actions
went far beyond what was necessary to accomplish this end. As noted by the 10
Administrative Law Judge, the union official in charge of the handbilling ascertained at
the outset the location of the company property line, and there is no evidence that the
handbillers showed any intention of encroaching on Respondent’s property.
258 NLRB at 860–861 (italics added; footnotes omitted). See also PartyLite Worldwide, Inc.,15
344 NLRB No. 155 (July 29, 2005), a representation case in which the Board found that the
employer had engaged in objectionable surveillance. In that case, the employer stationed a large
number of supervisors and managers both around its parking lot and at entrances while union
organizers distributed handbills to employees. The Board considered employee testimony that
the presence of so many supervisors and managers was surprising and unusual. Significantly, the 20
Board also noted that “the Employer established no legitimate explanation for why any of its
managers and supervisors were stationed in the parking lot during the Petitioner’s handbilling.”
Unlike the employer in PartyLite Worldwide, the Respondent in this case established a
legitimate reason for the presence of the managers, preventing a backup of traffic on Red Hollow 25
Road during the shift change. Moreover, unlike the employers in Arrow Automotive Industries
and PartyLite Worldwide, Respondent placed only one of its managers at each of the two gates,
which were about 100 yards apart. That was the minimum number necessary to accomplish the
legitimate purpose of keeping traffic moving through the gates during the shift change. Also
unlike Arrow Automotive Industries, one of the handbillers initially indicated an unwillingness to 30
move from the middle of the drive far enough to prevent slowing of the traffic.
As to the indicia of coerciveness listed by the Board in Aladdin Gaming, LLC, at each
gate, the manager stood within a few yards of the cars coming through. Although the managers
did not note the identities of the employees who took handbills, they were close enough to do so. 35
Accordingly, that factor weighs towards a finding that the presence of the managers was
coercive.
The managers stayed at the gates until the handbillers left, but the entire handbilling
lasted only about an hour. The managers stayed at the gates no longer than their legitimate 40
reason for being there, preventing a traffic bottleneck. The duration of the managers’ presence
near the handbillers does not, in my view, militate in favor of finding their presence coercive.
The record does not establish that Respondent engaged in any other behavior which
might be considered “coercive.” The absence of such behavior weighs in favor of a finding that 45
the managers’ presence at the gates was noncoercive.
JD(ATL)–31–07
6
The Board applies an objective standard, deciding how employees reasonably would
react, rather than examining evidence of how employees actually did react to the presence of the
managers near the handbillers. However, it may be noted that the credible evidence does not
establish that the managers’ presence discouraged employees from accepting handbills. The
Union organizers gave away all the handbills they had brought.5
Although Brown’s testimony suggested that one employee appeared to be apprehensive, I
am highly skeptical of that testimony, which was conclusory and offered no facts to support
Brown’s conclusion. It would be difficult for anyone to judge the state of mind of someone in a
car driving through the gate, even if it stopped momentarily.10
The only credible evidence of employee reaction suggests that Popwell’s presence at gate
2 did not dissuade employees from accepting handbills. Thus, even after Popwell told an
employee, who was “on the clock,” to go back to work, the employee went to the organizer and
got a handbill before returning to his post. That action certainly does not indicate that Popwell’s 15
presence had a scarecrow effect. However, because the Board applies an objective standard, I do
not consider this evidence in determining whether the presence of the managers interfered with
the exercise of Section 7 rights.
On the other hand, it is appropriate to take into account that the Union organizers were 20
distributing handbills at Respondent’s plant for the first time. The record does not establish that
employees had any advance knowledge that Union representatives would be present and thus had
no way to know, before accepting a handbill, that it pertained to the Union.
The record does not support a finding that, in the past, Respondent had done or said 25
anything to lead employees to believe it had an antiunion attitude. However, even should I
assume that an employee would be reluctant to accept a Union handbill while a manager was
watching, that assumption would apply only if the employee knew that the document pertained
to the Union. The record does not establish that a typical employee driving into work that
afternoon would have been aware that the man offering him something to read was a Union 30
representative.
Two photographs of Organizer Penn, taken at Gate 2 on the day of the handbilling, are in
evidence. Penn does not appear to be wearing any clothing which would identify him with the
Union. (Other photographs in evidence show a woman wearing a Union shirt, but she did not 35
engage in the handbilling and the record does not indicate that she was present at the time of the
handbilling.)
Neither manager made any gestures signaling that employees should not accept handbills.
They simply waved the cars through the gate. Whatever the incidental effect on the organizers’40
efforts to distribute handbills, it was perfectly legitimate, and noncoercive, for the managers to
motion for the drivers to move on because otherwise, during the shift change, traffic would have
backed up on Red Hollow Road.
Moreover, the managers’ presence at the gates was unaccompanied by coercive conduct. 45
These facts align the present case not with Arrow Automotive Industries but with Aladdin
Gardens, above. in which the Board found supervisors’ presence to be nonviolative.
JD(ATL)–31–07
7
After examining the evidence in light of the Board’s Aladdin Gaming and Arrow
Automotive Industries standards, I conclude that the two managers’ actions were not “out of the
ordinary” within the meaning of the Board decisions using that term. Further, I conclude that the
presence of the two managers at Respondent’s gates during the handbilling did not constitute 5
unlawful surveillance or otherwise interfere with, restrain or coerce employees in the exercise of
their Section 7 rights. See Wackenhut Corp., above.
Calling the Sheriff’s Department
10
In determining that Popwell did not violate the Act either by threatening to phone the
sheriff’s department or by doing so, I have concluded that the present facts distinguish this case
from Roadway Package Systems, 302 NLRB 961 (1991). In that case the Board, citing All
American Gourmet, 292 NLRB 1111 fn. 2 (1989), held that an employer violated Section 8(a)(1)
when a manager told employee handbillers he would call the police, and then did call the police.15
In the present case, however, Manager Popwell did not tell employees that he was going
to call the sheriff’s department. Rather, he made this statement to a Union organizer who was
not an employee. The record does not establish that any of Respondent’s employees heard either
Popwell’s statement or his cellphone call to the sheriff’s department. See Wackenhut 20
Corporation, above, 348 NLRB No. 93, slip op. at 2.
In some circumstances, however, an employer violates the Act by threatening with arrest
a union representative who is not its employee. Such a threat of arrest may constitute unlawful
interference, restraint or coercion even if the person threatened isn’t an employee but instead is 25
an agent of the employees and is engaged in protected activity on their behalf. In other words,
when employees have selected a union to be their exclusive representative, interference with the
protected activities of a union official will constitute, in certain circumstances, interference with
the rights of the employees which the union represents.
30
For example, Golden Stevedoring Co., Inc., 335 NLRB 410, 413–415 (August 27, 2001),
involved a company which performed work at a public dock. While its striking employees
picketed at a gate reserved for their employer’s use, their union agent investigated to determine
whether they could picket lawfully at other gates. From vantage points on public property, the
union agent watched the “neutral gates” to learn whether employees or suppliers of the primary 35
employer actually had been using those gates, thereby “tainting” the gates and making it lawful
to picket at them.
The employer sent the union agent letters threatening him with arrest, even though the
agent had not trespassed on the employer’s property. The Board held that even though the union 40
agent was not an employee of this employer, the threats directed at him unlawfully interfered
with employees’ exercise of their Section 7 rights.
This conclusion flows rather effortlessly from general notions about the agent–principal
relationship. Interfering with the lawful activities of an agent on his principal’s behalf harms the 45
principal as well as the agent. However, the present facts differ from Golden Stevedoring in a
significant way. Respondent’s employees had not chosen the Union to represent them.
JD(ATL)–31–07
8
Under some circumstances, however, a threat which dissuades a union organizer from
contacting an employee might interfere unlawfully with the exercise of Section 7 rights even
though the union did not represent the employee and the union official was in no sense the
employees’ agent. The present record, though, does not afford an opportunity to explore the 5
contours of that principle because the evidence does not establish that either manager threatened
to take any action if the union representative persisted in protected activity. Popwell’s statement
that he would call the sheriff’s department followed the union organizer’s persistence in standing
in the drive. Whatever protection the Act affords handbilling by a nonemployee organizer, that
protection does not extend to blocking the flow of traffic.10
Moreover, in context, Popwell’s statement that he would call the sheriff’s department
does not constitute a threat of arrest. Thus, the facts distinguish this case from Golden
Stevedoring, in which the respondent made a specific threat to have the union agent arrested.
Such an explicit threat to have someone arrested cannot be equated with a mere statement, 15
unelaborated and unamplified, of intent to call the police. People don’t always call the police to
have someone arrested. Instead, they may summon a law enforcement officer simply so that the
respective rights of the parties may be sorted out in a peaceful way. That is particularly true
where, as here, the issue concerned the proper use of public right–of–way under government
supervision and control.20
Precedents such as Lechmere, Inc. v. NLRB, 502 U.S. 527 (1972) address the conflict
between an employer’s right to exclude trespassers from its own property and the access rights of
nonemployee union organizers. However, it would be incorrect to assume that Respondent’s
only legitimate interest arises from the legal principles pertaining to trespassing. Respondent 25
also has a bonafide concern that its employees, suppliers and customers may use the drive to
enter or leave the facility without delay. This interest does not depend on whether a person
standing in the middle of the drive has his feet on Respondent’s property or on the public right–
of–way.
30
Typically, when a government entity owns property, it does not allow members of the
public, even taxpaying members, to use it at all times for all purposes. Motorists aren’t free to
park their cars in the traffic lane and have a tailgate party. A person aggrieved that a public road
has become, or might become unavailable for its designated purpose certainly has a right to
contact the public authority – in this case the sheriff’s department – which can correct or prevent 35
the problem.
Respondent’s legitimate interest in the patency of the drive into its facility distinguishes
the present case from Wild Oats Community Market, 336 NLRB 179 (2001). The respondent in
that case operated a store in a strip mall shopping center, and did not have the legal right to 40
exclude nonemployee union representatives from the parking lot. Instead, the respondent
contacted the strip mall owner, which called the police.
Even though the respondent did not contact the police, file a complaint with the police, or
ask the police to take any action, the Board concluded that the respondent acted unlawfully when 45
it notified the mall owner that union representatives were handbilling and picketing, thereby
“initiating a chain of events that culminated in the attempted removal of nonemployee union
JD(ATL)–31–07
9
representatives engaged in lawful, protected activity from the parking area in front of the
Respondent’s store. . .”336 NLRB at 180 (footnote omitted).
Significantly, the respondent in the Wild Oats Community Market case did not act out of
a concern that the handbilling and picketing was impeding or could impede access to the parking 5
lot or to the store. Indeed, when other groups had engaged in activities in the parking lot, the
respondent had not notified the mall owner. See 336 NLRB at 181, fn. 10. The Board had no
reason in that case to consider the respondent’s interest in the smooth and unobstructed flow of
traffic because the respondent had not asserted such an interest and the record did not establish
that the presence of the union representatives either was causing or foreseeably could cause such 10
a problem.
In the present case, unlike Wild Oats Community Market, the record does not indicate that
any other handbillers had appeared at Respondent’s gates. Thus, the evidence does not support a
conclusion that Respondent contacted the sheriff’s department because of the subject of the 15
handbilling – union organizing – rather than because of concerns about the adverse effect of the
handbilling on traffic flow.
Moreover, the actions of Manager Popwell are consistent with the conclusion that he
called the sheriff’s department because he reasonably expected the handbilling to cause a traffic 20
problem, not because the handbilling concerned a union. Popwell did not threaten the organizer
with arrest but only said that he was going to call the sheriff’s department. Moreover, Popwell
said that he was going to call the sheriff’s department after the organizer refused to move
sufficiently to allow vehicles unimpeded ingress. It is difficult to imagine what else Respondent
lawfully could have done to make sure that traffic could enter and leave its facility unimpeded. 25
When Popwell alerted the sheriff’s department that handbillers were present, that action
served two separate interests. Respondent, of course, had a particular interest in assuring that its
employees, suppliers and customers could enter and leave the plant without delay. Respondent
also had a civic interest in assuring that the traffic into and out of its plant did not cause a 30
bottleneck for others using the busy Red Hollow Road. Both interests are legitimate and merit
consideration.
In these circumstances, I conclude that Respondent did not violate Section 8(a)(1) of the
Act. Accordingly, I recommend that the Board dismiss the Complaint in its entirety.35
Conclusions of Law
1. The Respondent, Maclean Power System doing business as Maclean–Dixie, is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.40
2. The Charging Party, United Steelworkers of America, AFL–CIO–CLC, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent did not violate the Act in any manner alleged in the Complaint.45
JD(ATL)–31–07
10
On the findings of fact and conclusions of law herein, and on the entire record in this case, I
issue the following recommended2
ORDER
5
The Complaint is dismissed.
Dated Washington, D.C., September 27, 2007.
10
__________________________________
Keltner W. Locke
Administrative Law Judge15

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–31–07
11
APPENDIX A
Bench Decision
5
This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations.
Procedural History
10
This case began on April 24, 2007, when the Charging Party filed an unfair labor practice charge
against Respondent.
. On June 27, 2007, after investigation of the charge, the Regional Director for Region 10 of the
National Labor Relations Board issued a Complaint and Notice of Hearing, which I will call the 15
“Complaint.” In issuing this complaint, the Regional Director acted on behalf of the General
Counsel of the Board, whom I will refer to as the “General Counsel” or as the “government.”
A hearing opened before me on August 17, 2007 in Birmingham, Alabama. At the start
of hearing, the parties stipulated that Respondent’s correct name is Maclean Power System doing 20
business as Maclean–Dixie, and I am amending the case caption to reflect that correction.
Also on August 17, 2007, after all sides had rested, counsel presented oral argument.
Today, August 20, 2007, I am issuing this bench decision.
25
Admitted Allegations
Based on admissions in Respondent’s Answer, I find that the government has proven the
allegations raised in Paragraphs 1, 2, 3 4 and 5 of the Complaint. Accordingly, I conclude that
the charge was timely filed and served, as alleged, that Respondent is an employer engaged in 30
commerce within the meaning of Section 2(2), (6) and (7) of the Act, and meets both the
statutory and discretionary standards for the exercise of the Board’s jurisdiction.
Further, based upon Respondent’s Answer and a stipulation at hearing, I conclude that
the following individuals are Respondent’s supervisors and agents within the meaning of Section 35
2(11) and 2(13) of the Act, respectively: Plant Manager Anthony Popwell; Human Resources
Manager Dennis Veigl; and Plant Superintendent Jimmy Johnson.
Additionally, based upon Respondent’s Answer, I find that the Union is a labor
organization within the meaning of Section 2(5) of the Act.40
Credibility of Witnesses
All of the relevant events in this case took place during a one–hour period on the
afternoon of April 23, 2007. At that time, two Union organizers, Samuel Penn Sr. and Clarence 45
Brown, distributed handbills to employees coming to work at Respondent’s factory in
Birmingham, Alabama. In general, all of the witnesses gave rather similar accounts of these
JD(ATL)–31–07
12
events. However, to the extent it is necessary to resolve conflicts in the testimony, I credit that
of Anthony Popwell and Dennis Veigl rather than that of Samuel Penn Sr. and Clarence Brown.
Both Penn and Brown testified that one of the men who approached them while they
were handbilling at Respondent’s plant was Jimmy Johnson, the plant superintendent. However, 5
the record does not establish that Johnson was present. Moreover, Popwell and Veigl testified
that Johnson was not. The record suggests that Penn and Brown misidentified Veigl, mistaking
him for Johnson.
Additionally, although Penn sought to minimize, in his testimony, any suggestion that the 10
handbilling caused traffic congestion, he gave one response on cross–examination that suggests
otherwise. Penn had testified that the plant gate actually consisted of two parts which
presumably swung together in the center in the customary manner. Penn also testified that when
he arrived, one side of the plant gate was closed but that the plant manager, Anthony Popwell,
opened it. On cross–examination, Penn testified, in part, as follows:15
Q. And so what he did in opening the gate helped you, correct?
A. I’m not going to give you that. What he did was alleviate the bottleneck of cars
trying to get into the plant.
20
Such testimony suggests that there was, indeed, a traffic bottleneck. Penn’s efforts to downplay
the effect of the picketing on the traffic flow suggests that he was somewhat partisan in his
testimony.
Similarly, some of Brown’s responses on cross–examination seemed somewhat partisan, 25
causing me to have some doubts about the objectivity of the testimony. As already stated, there
are few major disagreements in the testimony of the witnesses, but where conflicts do exist, I
credit the testimony of Popwell and Veigl rather than Penn and Brown.
Disputed Allegations30
Complaint paragraph 7 alleges that on April 23, 2007, the Respondent, by Popwell and
Veigl, at a public right–of–way adjacent to the Respondent’s facility on Red Hollow Road in
Birmingham, Alabama, engaged in surveillance of employees’ responses to Union handbilling
activities.35
Complaint paragraph 8 alleges that on about April 23, 2007, Respondent, by Popwell and
Veigl, at the same location, interfered with the rights of employees of the Respondent to receive
Union handbills being distributed there.
40
The Complaint further alleges that these actions violated Section 8(a)(1) of the Act.
Respondent denies all of these allegations.
Facts
45
On April 23, 2007, Union organizers Penn and Brown came to Respondent’s facility on
Red Hollow Road in Birmingham, Alabama. Both Penn and Brown are employed by the Union.
JD(ATL)–31–07
13
Neither is an employee of Respondent. Moreover, the record does not establish that either has
sought employment with Respondent.
A high chain–link fence surrounds Respondent’s factory. Although there are four gates
in the fence, Respondent opens two of them for use by employees coming to work or leaving. 5
Near these two gates, there are signs on the fence stating “Restricted Area.”
The government has not raised any assertion that Respondent lacked the legal right to
exclude people from its property. I conclude that it had such a right.
10
Both of the plant gates used by employees – labeled Gates 2 and 3 – have driveways
connecting with Red Hollow Road, a busy road with both residential and business traffic. Penn
stationed himself by Gate 2 and Brown by Gate 3 and began handing out handbills to drivers of
cars entering the plant.
15
Popwell and Veigl, inside the plant, learned that two men were at the gates and decided to
investigate. Respondent had not received any word that Union organizers would be coming to
the plant and they were unaware of that fact until they arrived at the gates.
Although the Union organizers assert that they were not on Respondent’s property, I find, 20
crediting Respondent’s witnesses, that at some point they were in the middle of the driveways
and thus in a position to block traffic entering and leaving the plant. It is undisputed that Veigl
and Popwell told Brown and Penn, respectively, to move and that if they did not, they would call
the sheriff’s department. The two handbillers did move to locations outside the gates and
alongside the driveway.25
Popwell did notify the sheriff’s office by cellphone that the handbillers were present.
However, neither Popwell nor Veigl made any threat to have anyone arrested. The evidence
does not establish that any employee heard Popwell call the sheriff’s department. Similarly, the
evidence does not establish that any employee heard any of the discussions between Veigl and 30
Brown, or between Popwell and Penn.
The second shift began at 2 p.m. and traffic increased greatly. I do not credit testimony
asserting that Popwell stood between the Union organizer and four of the entering cars, an act
which Popwell denies. Rather, I find that the only thing which either Popwell or Veigl did in 35
connection with the picketing was to watch from several yards away, and to motion cars to enter
the plant.
There is no allegation that Popwell or Veigl photographed the pickets or employees or
took notes of which employees accepted handbills. I find that they did not. Additionally, I find 40
that the handbillers distributed all of the handbills which they brought with them.
Discussion
Because of the heavy traffic on Red Hollow Road, Respondent had an interest in assuring 45
that employees could enter the facility to report for work without stopping traffic on the road. I
find that this interest motivated Veigl and Popwell.
JD(ATL)–31–07
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Additionally, I conclude that antiunion animus did not enter into either manager’s
motivation. Were this case to be decided on the basis of motive, clearly the Act would not be
violated.
5
However, motive is not relevant to the finding of an 8(a)(1) violation. Rather, I must
judge whether the Respondent’s conduct reasonably would have a tendency to interfere with,
restrain or coerce employees in the exercise of Section 7 rights. In this instance, I conclude that
the actions of Popwell and Veigl would not.
10
Although the actions of Popwell and Veigl were not part of their daily routine, and in that
sense were out of the ordinary, the handbilling was also out of the ordinary.
In these circumstances, viewing the events from the perspective of a typical employee, I
do not conclude that the actions of Popwell or Veigl interfered with, restrained or coerced 15
employees in the exercise of their Section 7 rights.
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to this case,20
Throughout this proceeding, all counsel demonstrated high levels of civility and
professionalism which are truly appreciated. The hearing is closed.
25