Mcdonnell Douglas Helicopter Co.

National Labor Relations Board - Board Decisions

Apr 23, 1987

283 N.L.R.B. 707 (N.L.R.B. 1987)

MCDONNELL DOUGLAS` CO.
McDonnell Douglas Helicopter Company and Inter-
national Union, United Automobile , Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW), AFL-CIO. Case 28-CA-8428
23 April 1987
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND CRACRAFT
On 8 December 1986 Administrative Law Judge
George Christensen issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
response to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
i The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit.
1951) We have carefully examined the record and find no basis for re-
versing the findings.
Additionally, the General Counsel excepted to alleged failures by the
judge to make certain credibility resolutions of conflicts in the testimony
of Lieutenant Hanner and the General Counsel's witnesses concerning
the 16 April 1986 incident. Footnote 3 of the judge's decision' addresses
just such concerns The judge notes that every conflict has not been spe-
cifically resolved, then gives the basis for his findings, and concludes
"therefore, any testimony in the record that is inconsistent with my find-
ings is discredited." Implicitly all conflicts are resolved- by the footnote.
Even resolving the conflicts in the light most favorable to the General
Counsel, the evidence fails to establish a violation. The testimonial con-
flicts pertain to inconsequential facts, which are of no significance in de-
termining whether the Respondent's conduct was violative of the Act.
We agree with the judge's dismissal of the complaint. We note that this
case does not present an access issue Rather, the issue is whether the Re-
spondent, through its agent, Lieutenant Harmer, engaged in conduct that
under the specific circumstances of this case tended to interfere with, re-
strain, or coerce employees in the exercise of their Sec. 7 rights. The
record evidence establishes that the Employer uniformly adhered to a
policy of allowing only employees to distribute literature at its employee
entrance gates. In furtherance of this policy the Respondent had a legiti-
mate interest in determining the identity of the leafletters. In light of the
fact that the Respondent employs over 2000 employees at the plant in
question, it is reasonable that the Respondent would need to inquire as to
the identity of those leafletting in order to ascertain that they were
indeed employees. Further, it is clear that the Respondent, upon learning
that the leafletters were employees (with one possible exception), did
nothing which interfered with further distribution of the leaflets. Thus,
we find that the Respondent's security guard's actions did not violate
Sec. 8(a)(1)
707
Jordan Ziprin Esq., for the General Counsel.
Robert J Deeny and Tibor Nagy, Jr., Esgs (Snell &
Wilmer), of Phoenix, Arizona, for MDHC.
William T Ross, of Mesa, Arizona, for UAW.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge.
On 24 and 25 September 19861 I conducted a hearing at
Phoenix, Arizona, to try issues raised by a complaint
issued on 16 May based on original and amended charges
filed on 17 and 18 April by the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO (UAW).
The complaint alleged on 16 April a security officer
employed by McDonnell Douglas Helicopter Company
(MDHC)-Guard Lieutenant Richard Hanner-sur-
veilled, demanded and, wrote down the names of several
persons distributing UAW literature to employees enter-
ing and leaving MDHC's premises during a midafternoon
shift change, thereby violating Section 8(a)(1) of the Na-
tional Labor Relations Act (Act).
In its answer to the complaint, MDHC admitted at
times material it employed Harmer as a guard lieutenant
but denied ' Harmer was acting - as its agent, denied
Hanner committed the acts attributed to him, and denied
violating the Act.
The issues raised by the above are: (1) whether at
times material Harmer was an agent of MDHC acting on
its behalf; (2) if 'so, whether Hanner committed the acts
-attributed to him; and (3) if so, whether MDHC thereby
violated the Act.
The General Counsel and MDHC appeared by counsel
and were afforded full opportunity to adduce evidence,
examine and cross-examine witnesses, argue, and file
briefs. Both counsels filed briefs.
Based on my review of the entire record,2 observation
of the witnesses, perusal of the briefs and research, I
enter the following3
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
at all pertinent times MDHC was an employer engaged
in commerce in a business affecting commerce and UAW
was a labor organization within the meaning of Section 2
of the Act.
i Read 1986 after further date references omitting the year
2 The General Counsel moved to correct the transcript by changing
the word "counsel" at p. 100, 7, to "console." The motion is denied; in-
stead, the word "personnel" shall be substituted.
3 Although every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my exami-
nation of the entire record, my observation of the witnesses' demeanor
while testifying, and my evaluation of the reliability of their testimony;
therefore, any testimony in the record that is inconsistent with my find-
ings is discredited.
283 NLRB No. 108
708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE ALLEGED UNFAIR LABOR PRACTICES '
A. Facts
MDHC manufactures military helicopters at Mesa, Ar-
izona. Its facilities include a flight line, hangers, a ware-
house, an office building, a large plant, and a parking lot.
All the facilities just named are on MDHC property.
The buildings are enclosed by a high chain-link fence.
After parking their autos within the parking lot, employ-
ees pass through one of three gates in proceeding to and
exiting from their work stations. One gate has a turnstile
released-by a guard at a central control room following
his comparison of the picture -on an identification badge
inserted by an entering employee in a slot at the turnstile
with the face of the entrant reflected on a screen coupled
to a camera at the turnstile. A gate next to the turnstile is
opened at shift changes for the use of exiting employees,
after displaying their badges to a guard stationed inside
the gate. Another gate is the entrance to/exit from the
main lobby of - the office building. There, guards sta-
tioned inside the outer door to the lobby (the door be-
tween the parking lot and the lobby) scrutinize the
badges of employees coming through the outside door
and proceeding towards the inside door (the door lead-
ing from the lobby towards the plant) and employees
coming through the inside door and proceeding towards
the-outside door. Guards are stationed at a guard shack
inside a third gate in the chain-link fence and monitor
the badges of employees passing between the parking lot
and the plant.
UAW, conducted an organizing campaign at MDHC's
facilities in 1985.. Early, in the campaign, (in March 1985),
MDHC guards checked badges worn by persons distrib-
uting UAW literature to its employees during a shift
change on MDHC property (on the parking lot, just out-
side the three gates described above), noted names of the
distributors, checked the names against indexes main-
tained by MDHC and its parent company, ascertained
some of the distributors were MDHC employees and
some were employees of other divisions of MDHC's
parent company, and barred the latter from further dis-
tribution on its premises.4
UAW supporters among MDHC's employees frequent-
ly destributed UAW, literature at the locations described
above during shift changes between March and 6 No-
vember '1985, when an election was conducted under
Board' auspices.5
Since 6 November 1985, UAW supporters distributed
UAW literature at the three locations one in mid-March
and on 16 April.6
4 MDHC had a policy prohibiting distributions on its property by
other than employees.
5 Pursuant -to a direction of election issued in Case 28-RC-4300, UAW
lost the election, filed election objections and unfair labor practice
charges alleging MDHC conduct during the campaign prevented a fair
election and violated the Act, a complaint was issued, the complaint alle-
gations and election objection 's' were consolidated for hearing purposes,
and a hearing is currently under way
6 Two of the 16 April distributors-Dons Hunt and John Thomas-
were distributors on 16 April, in nud-March and on numerous other dates
between March and November 1985.
The 16 April:distribution occurred-at the midafternoon
shift change-between 3:20 and 3:50 p.m. Over 2000 em-
ployees pass through the- three gates during.that period.
Doris Hunt, an MDHC employee scheduled to begin
work on the second shift at 4 p.m., arrived at one of the
gates about 3:20 p.m. and began to distribute UAW liter-
ature to entering employees and (after 3:30 p.m., when
the first shift ended) to exiting employees. A guard sta-
tioned inside the gate came out shortly after Hunt began
distributing literature, asked what Hunt was doing, was
informed she was , distributing union literature, asked for
a copy, and received one. The guard reentered the gate
and reported to someone unknown to Hunt literature
was being distributed outside the gate.
Hunt was joined by first shift employee Lana Johnson
about 3:35 p.m. and Johnson immediately began assisting
Hunt in distributing literature. Distributors John Thomas,
Guy Terry, George Johnson, Betty Johnson, and Jerry
Fletcher appeared at the other two gates shortly after
3:30 p.m. All but Betty Johnson were first shift employ-
ees.7 All but Betty Johnson wore MDHC identification
badges.8
MDHC employs a guard force on shifts covering the
full 24 hours of each day. Each shift is in charge of a
watch commander carrying the rank of lieutenant. The
guard force is equipped with sidearms and walkie-talkies
while on duty. The guard headquarters are in a centrally
located control room. The facility's radio and telephone
communications , a control panel monitoring, inter alia,
cameras covering the parking lot and the turnstile, are
located within the control room. Guards man the control
panel.
On 16 April, Guard Lieutenant Richard Harmer was
the watch commander for a guard shift ending at 3 p.m.
Lieutenant Carl' Fullenwider was the watch commander
for, a guard shift commencing at 3 p.m. On completing
his 16 April shift, Hanner turned in his sidearm and
walkie-talkie, but remained in the control room to- com-
plete'some paperwork., He received a message from one
of the gate, guards about 3:30 p.m. that literature was
being distributed at one of the gates and transmitted that
information to Fullenwider. The two scrutinized the
screens projecting images from the parking lot and noted
individuals distributing literature at all three gates but,
due to the low resolution of the parking lot cameras,
were unable to determine the identity of the distributors
or whether they were wearing' MDHC identification
badges. Fullenwider telephoned MDHC's employee rela-
tions director, reported what -he and Harmer observed,
and on completing the call, informed Harmer he had
been directed to get the -names of the distributors and de-
termine whether they were MDHC employees and asked
Harmer to go to the three gates to carry out those in-
structions.9 Harmer agreed to carry out the requested in-
vestigation. -
7 Betty Johnson was George Johnson's wife and was employed by a
contractor working within MDHC's premises.
9 Contractor employees were required to surrender their badges before
passing through an exit gate.
9 Fullenwider was still getting his shift organized and had a spur on
one heel, which made it painful for him to walk any distance.,
MCDONNELL DOUGLAS CO. 709
About 3:35 p.m. Harmer took a clipboard and pad, left
the control room, went to each gate , asked each distribu-
tor to display his MDHC identification badge, asked
each for his or her name , and wrote the name of each
distributor-on his pad. He did not ask any of the distribu-
tors to cease distribution, he did not threaten any distrib-
utor with discipline, and he replied to their inquiries the
reason for his actions with statements he was only doing
his job, he was carrying out instructions, or the like.
Hanner spent about 1 minute addressing each of the
seven distributors and returned to the control room
about 3:50 p.m, On his return, he and Fullenwider
checked MDHC's employee indexes, confirmed all the
distributors other than Betty Johnson were current
MDHC employees and identified Betty Johnson as the
current employee of an MDHC contractor. 1 ° Hanner
and Fullenwider subsequently prepared and forwarded to
employee relations standard investigation reports con-
taining the information employee relations requested; i.e.,
the names of the seven distributors and their current em-
ployee status.
There is no evidence any entries were made in the per-
sonnel files of the six MDHC employees, any discipli-
nary action was taken against the six or that Betty John-
son's employment status was affected.
B. Analysis and Conclusions
1. The agency issue
Although -Harmer may not have been on paid time
while carrying out Fullenwider's request that he investi-
gate the employment status of the distributors,' 1 he cer-
tainly was carrying out security duties assigned to the
guard forces by MDHC management, as the alter ego of
the man assigned to perform those duties-Fullenwider.
I therefore find that while conducting his investigation
and making his report Harmer was an agent of MDHC,
acting on its behalf within the meaning of Section 2 of
the Act.
2. Commission of the acts alleged in the complaint
I have entered findings on 16 April, that Harmer asked
the seven individuals distributing UAW literature on
MDHC property to show him their MDHC employee
identification badges, asked for their names, wrote their
names on a pad, and wrote a report advising MDHC's
employee relations director the names of the seven dis-
tributors and their employee status , all as alleged in the
complaint and denied in the answer.
3. Did MDHC violate the Act by virtue of
Hanner's actions
Conflicts between the rights of a union to communi-
cate with employees on their employer's property and
their employer's right to limit union access to that prop-
erty for that purpose has been the subject of voluminous
litigation.
In cases concerning that conflict, the United States Su-
preme Court has ruled that it is the Board's function "to
seek a proper accommodation between the two" 12 ".. .
with as little destruction of one as is consistent with the
maintenance of the other" 13 and, as the Board noted in a
recent case, "the claim of a party to one or the other of
these rights will have varying degrees of strength de-
pending on the facts of the particular case."14
In this case, most of the over 20(0 employees who
pass through the gates at the midafternoon shift change
passed by the UAW distributors before Hanner arrived.
It is doubtful more than a few were prevented from re-
ceiving UAW literature during the fevv minutes Harmer
conversed with the seven distributors.
MDHC had a legitimate interest in identifying the dis
tributors to see if they were lawfully entitled to distrib-
ute literature on its property and, having ascertained
(with one possible exception) they were, neither inter-
fered with nor prevented the distribution and neither
threatened to nor instituted any disciplinary action
against the distributors.
On these facts, J find MDHC's right to police its prop-
erty in furtherance of its lawful policies had minimal
impact on any employee rights under Section 7 of the
Act, and therefore MDHC did not violate the Act by'
Hanner's actions. 15
CONCLUSIONS OF LAw'
1. At all pertinent times, MDHC was an employer en-
gaged in commerce in a business affecting commerce and
UAW was a labor organization within the meaning of
Section 2 of the Act.
2. At all pertinent times Richard Hanner was an agent
of MDHC acting on its behalf within the meaning of
Section 2 of the Act.
3. MDHC did not violate the Act, by Harmer's 16
April inspection of the employee badges of the persons
distributing UAW literature on MDHC; property, his re-
questing their names, his writing their names on a
scratch pad, his checking MDHC employee indexes to
determine current employee status, and his preparation,
and submission of a report to higher management detail-
ing the foregoing.
1° Which differed from Betty Johnson's statement to Harmer at the
gate; i.e., that she was an MDHC employee but had forgotten her identi-
fication badge that day and secured a temporary badge while working
the first shift, which, in accordance with normal procedure, she turned in
on completing her shift.
11 The record does not disclose Hanner's pay status (salaried or
hourly) nor whether he was paid for the time he spent carrying out em-
ployee relations' instructions.
12 Central Hardware Co v.'NLRB, 407 U.S. 539, 543 (1972).
13 Babcock & Wilcox Co, 351 U S 105, 112 (1956).
14 Fairmont Hotel, 282 NLRB 139 (1986)
15 Uniontown Hospital Assn., 277 NLRB 1299, 1307 (1985), Metal In-
dustries, 251 NLRB 1523, 1526 (1986); Maywood, Inc., 251 NLRB 979,
986 (1980); Federated Department Stores, 241 NLRB 240, 242-243 (1979);
National Steel Corp., 238 NLRB 253, 255 (1978).
710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed16
16 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
ORDER
The complaint is dismissed.. -
Order shall , as provided in Sec ` 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived' for all pur-
poses. -