Panavision, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1982

264 N.L.R.B. 1284 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Panavision, Inc. and International Sound Techni-
cians, Cinetechnicians and Television Engineers,
Local 695, International Alliance of Theatrical
Stage Employees and Moving Picture Machine
Operators of the United States and Canada,
AFL-CIO. Case 31-RC-5104
September 30, 1982
DECISION AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Pursuant to authority granted it by the National
Labor Relations Board under Section 3(b) of the
National Labor Relations Act, as amended, a three-
member panel has considered the objection to an
election' held on July 9, 1981, and the Hearing Of-
ficer's report attached hereto, recommending dis-
position of same. The Board has reviewed the
record in light of the exceptions and brief, and
hereby adopts the Hearing Officer's findings 2 and
recommendation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was 48 for, and 72 against, the
Petitioner; there were 22 challenged ballots, an insufficient number to
affect the results.
I Having adopted the Hearing Officer's finding that Robert Sarnoff
and David Miranda were laid off employees on July I, 1981, we find it
unnecessary to consider what their rights would have been as nonem-
ployees at the time of their denial of access. We therefore do not adopt
the Hearing Officer's finding that. assuming they were of nonemployee
status, their exclusion from the employer's premises was in the nature of
a newly promulgated employer policy on solicitation by outsiders.
APPENDIX
HEARING OFFICER'S REPORT ON
OBJECTION AND RECOMMENDATION
Pursuant to a petition filed on June 1, 1981,' and a
Stipulation for Certification Upon Consent Election
thereafter executed by the parties, an election by secret
ballot was conducted on July 9, under the direction and
supervision of the Regional Director for Region 31 in
the unit agreed appropriate. 2 After the election, each
party was furnished with a tally of ballots which showed
that of approximately 156 eligible voters, 142 cast ballots,
of which 48 were cast for the Petitioner, 72 were cast
against the Petitioner, and 22 were challenged. The chal-
t All dates hereinafter are 1981 unless specifically denoted otherwise.
2 Included:
All employees in manufacturing, servicing and rental of motion pic-
ture cameras and related equipment including shipping and receiving
at the Employer's facility located at 18618 Oxnard Street. Tarzana,
California 91356.
Excluded:
All office clerical employees, salesman, guards and supervisors as de-
fined in the Act.
lenged ballots were not sufficient in number to affect the
results of the election.
On July 16, the Petitioner filed timely objections to
conduct affecting the results of the election, a copy of
which was duly served upon the Employer.
On September 22, the Regional Director for Region 31
issued and served on the parties his Report on Objections
in the above-entitled matter. In his report, the Regional
Director overruled Petitioner's Objections Nos. 2
through 9, that portion of Objections No. 1 concerning
discriminatory lay-offs of employees, and the generalized
objection set forth in the conclusionary paragraph of Pe-
titioner's Objections. He further ordered in this Report
that a hearing be held, before a duly designated Hearing
Officer, to resolve the material and substantial factual
and legal issues raised by that portion of Petitioner's Ob-
jection No. I concerned with the Employer's denial of
access to laid-off employees.
Both the Employer and the Petitioner filed exceptions
to the Regional Director's Report.
On March 17, 1982, the Board issued a Decision and
Direction adopting, in part, the Regional Director's find-
ings and adopting his recommendations. In its Decision
and Direction, the Board remanded the above-entitled
matter to the Regional Director for the purpose of ar-
ranging a hearing to resolve the issues raised by that por-
tion of Objection No. I concerning the Employer's
denial of access to laid-off employees.
On April 14, 1982, the Regional Director issued a
Notice of Hearing on Objections in the above-entitled
matter, directing that a hearing be held to receive evi-
dence and resolve the issues raised by that portion of Pe-
titioner's Objection No. I concerning the Employer's
denial of access to laid-off employees.
Pursuant to notice and in accordance with the Board's
Decision and Direction dated March 17, 1982, in the
above-entitled matter, a hearing was held on May 4,
1982, at Los Angeles, California, before the undersigned,
Susan D. Kunk, the duly designated Hearing Officer to
conduct the hearing on objection. The Employer and the
Petitioner were each represented by counsel and partici-
pated in the hearing. All parties were afforded full op-
portunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing upon the
issues.
Upon the entire record in this case, and from my ob-
servations of the witnesses, I make the following findings
of fact, resolutions as to credibility, conclusions, and rec-
ommendations.
The relevant portion of Objection No. I is set forth
below:
Soon after the layoff, known union supporters on
layoff sought access to employees in the plant, on
breaks and non-work time, but were denied such
access by Panavision.
Petitioner witness Robert Sarnoff testified that, on or
about July 1, at approximately noon, he went onto the
Employer's premises, walked up the Employer's drive-
way and across the employee parking lot; that he then
proceeded to distribute union literature, and engage in
264 NLRB No. 165
1284
PANAVISION, INC.
conversion concerning the union, Panavision employees
on lunchbreak who were eating on the patio and at
benches located around the perimeter of the employee
parking lot. Sarnoff states that, as he was distributing lit-
erature in the parking lot, Employer supervisor Jack
Barber approached him and inquired what he was doing
on company property; that, when he told Barber he was
handing out union literature, Barber told him to leave
the plant or he would have him arrested for trespassing.
Sarnoff testified that he told Barber he believed it was
his right, as a laid off employee, to circulate the union
literature and that he asked Barber to repeat in front of
the other employees what he had just told Sarnoff. Sar-
noff states he and Barber walked to the patio and Barber
repeated in front of approximately eight people, of
whom at least four or five were employees, that he
would have Sarnoff arrested for trespassing if he did not
leave the premises. Sarnoff states he left at this point and
did not attempt to access the Employer's premises again.
Petitioner witness David Miranda testified that, on or
about July 1, at approximately 11:45 a.m., he walked
onto the Employer's premises and headed up the Em-
ployer's driveway toward the employee parking lot ac-
companied by fellow employee Guillermo Boichenko.
Miranda states that, before he and Boichenko could
reach the employee parking lot, Employer executive
Frank Vogelsang came out of the building, walked up to
them in the driveway, and asked Miranda what they
were doing therc. Miranda states that he told Vogelsang
they had come to distribute some union literature and
that Vogelsang said, "You cannot do that." Miranda
states he told Vogelsang he thought they did have the
right because they were laid off with right of recall. Mir-
anda states Vogelsang replied that the Employer had
checked with it attorney and had been told they did not
have the right to be on the Employer's premises and
that, if they did not leave, Vogelsang would have to
have them arrested for trespassing. Miranda states he left
the premises and did not attempt to access the Employ-
er's premises again.
The testimony of Sarnoff and Miranda regarding the
occurrence of these incidents is uncontradicted. Thus, I
credit Sarnoff and Miranda and find that the incidents, as
they described them, occurred.
Inasmuch as the standards applicable to distribution of
union literature and solicitation by non-employee orga-
nizers are markedly different from the standards applica-
ble to employees,3 I will first focus on the question of
the status of Sarnoff and Miranda.
Although the Employer claimed in its oral argument
during the hearing that Sarnoff and Miranda were termi-
nated or, in the alternative, permanently laid off, the Em-
ployer adduced no evidence during the hearing to sub-
stantiate this claim.
To substantiate its claim that Sarnoff and Miranda
were temporarily laid off employees with a reasonable
expectation of return to employment with the Employer,
the Petitioner relies primarily on a written agreement en-
tered into between the Employer and the Petitioner on
3 NL.R.B v. Babcock d Wilcox Co., 351 US. 105.
June 12.4 On its face, this agreement is an informal set-
tlement between the Employer and the Petitioner resolv-
ing certain allegations made by Petitioner against the
Employer in an unfair labor practice charge with the
Region (inter alia, the allegation that the Employer dis-
charged Sarnoff, Miranda and some 25 other employees
on June 5 because of their activities on behalf of the Pe-
titioner), and an agreement by the Employer to enter
into an election agreement in the above-entitled proceed-
ing, in consideration of which the Petitioner agreed to
withdraw the unfair labor practice charge.
In relevant part, this June 12 agreement states: "The
27 employees who were terminated or laid off on June 5,
1981, will have rights of recall to their former positions
of employment at Panavision within 30 days of a settle-
ment with respect to the current collective-bargaining
agreement between the producers and the Directors
Guild of America, provided there is work available for
them." Thus, the language of the agreement suggests that
on June 12, the Employer and the Petitioner viewed Sar-
noff, Miranda and the other employees separated on June
5 as employees on temporary lay off at least through the
period of 30 days following settlement of the Directors
Guild collective bargaining situation. The record (see Pe-
titioner's Exhibit No. 1, an Associated Press release
dated July 1, 1981) indicates that the Directors Guild
reached agreement with the major producers on June
29-one day before the denials of access and 10 days
before the election.
A minor point but lending support to the notion that
the Employer viewed Sarnoff and Miranda and the
others separated on June 5 as being temporarily laid off,
and thus eligible to vote in the election, is Miranda's un-
contradicted testimony that, after his layoff on June 5
and prior to the election, he received a piece of cam-
paign literature in the mail from the Employer's presi-
dent urging him to vote in the election.
Based on the record as a whole but primarily on the
explicit language of the June 12 agreement between the
parties, coupled with the Employer's failure to adduce
evidence contradicting the literal construction of the
June 12 agreement, I find that, on July 1, the Employer
and the Petitioner viewed Sarnoff and Miranda as em-
ployees temporarily laid off with a reasonable expecta-
tion of re-employment and eligible to vote in the July 9
election.
At least as important as the question of the actual
status of Sarnoff and Miranda-and, in my view, more
important-to resolution of the issue at hand, is the ques-
tion of the perceptions of the other employees in the unit
as to the status of Sarnoff and Miranda at the time of the
denials of access. Other employees witnessed the denial
of access to Sarnoff5 and it is reasonable to assume
knowledge of this denial of access extended beyond
those who actually witnessed it. As far as employees'
perceptions are concerned, was the denial to a former
employee? Or was the denial to an employee on tempo-
4 This agreement between Employer and the Petitioner is Exhibit "B"
to Board Exhibit l(aH7)
s It appears Boichenko was one of the 25 or so employees separated on
June 5. (See page 2 of Exhibit "A" to Board's Exhibit l(a(
7
) )
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rary lay off who had a personal stake in the outcome of
the election? Inasmuch as the record is replete with testi-
mony concerning the Petitioner's picket line on the Em-
ployer for the two weeks immediately following the
June 5 separations of 25 or so employees and continuing
up to the point in time when the June 12 agreement is
signed, as well as testimony concerning the active leaflet-
ting to employees from this picket line, the contents of
the agreement can be presumed to be common knowl-
edge among the Employer's employees as of July 1.
Thus, in my view, it would have been the employees'
perception that Sarnoff and Miranda were laid off em-
ployees with a reasonable expectation of re-employment
with the Employer at the time they were denied access
to the Employer's premises for purposes of distributing
union literature and discussing union organization with
the other employees. Thus, I submit that the underlying
rationale for evaluating the Employer's conduct is the
same whether the individuals are actually employees on
temporary layoff or whether the individuals are merely
viewed as such by the rest of the unit employees.
It is well established that no restrictions may be placed
on employees' right to discuss self-organization among
themselves, unless an employer can demonstrate that that
restriction is necessary for maintenance of production or
discipline. Republic Aviation Corp. v. N.L.R.B., 324 U.S.
793, 803.
Since the Board's decision in Tri-City Medical Center,
Inc. 222 NLRB 1089, the Board has held that, except
where justified by business reasons, a rule which denies
off-duty employees entry to parking lots, gates and other
outside non-working areas will be found invalid. The
Board has even refined Tri-City to prohibit denial of
access to off-duty employees for union organizational ac-
tivities in certain non-work areas inside the plant (e.g.,
the cafeteria). Maywood, Inc., 251 NLRB 979; Central
Solano County Hospital Foundation, Inc., 255 NLRB 468.
The Board's rationale for affording off-duty employees
the same access opportunities afforded by law to on-duty
employees is, I submit, equally applicable to employees
whose status is that of temporarily laid off-namely, they
are eligible to vote and have a stake in the outcome of
the election.
The Employer adduced no evidence to show that the
denial of access to either Sarnoff or Miranda was based
on considerations of threat to production or discipline,
other than a June 30 letter from a Petitioner business
representative to a labor relations official of the Los An-
geles Police Department complaining of alleged leaflet-
line misconduct by an Employer supervisor and request-
ing that the Los Angeles Police Department investigate
the allegations of the letter and serve warrant against the
supervisor (see Employer Exhibit No. 1). I fail to see
where the fact of this letter gives rise to a reasonably
based fear that Sarnoff and Miranda coming onto the
property on July I to distribute union literature and so-
licit support for Petitioner among the employees on
lunchbreak in the employee parking lot and on the patio
adjoining that parking lot constituted a threat to either
production or discipline.
Neither do I find the Employer's conduct in denying
access to Sarnoff and Miranda on July I to be de minimis
conduct not requiring the election to be set aside. In
making this finding, I follow the rationale set forth by
the Board in its recent decision in Central Solano County
Hospital Foundation, Inc., supra. In Central Solano, the
Board set the election aside based solely on one or two
instances of Employer prohibition on the right of off-
duty employees to solicit support for the Union among
employees taking breaks in their break room within the
hospital itself. There, as here, the off-duty employees had
the opportunity to leaflet employees at the Employer's
gate as the employees drove their cars in and out of the
Employer's premises going to and from work. There, as
here, the off-duty employees were leading union adher-
ents. In Central Solano, the Board stated:
The rights of employees to discuss the Union and to
solicit support for the Union are fundamental to
their Section 7 right to organize. Employer disci-
pline for or unlawful prohibition of such activity ex-
tends beyond the individuals who receive the warn-
ings or are told of the prohibition to affect others in
the unit. . . . This is especially true where, as here,
the discipline or prohibition was directed at a lead-
ing union adherent. .... [255 NLRB at 475.]
For the reasons set forth above, I find that the Em-
ployer engaged in conduct warranting setting aside of
the election when it denied laid-off employees Robert
Sarnoff and David Miranda access to its parking lot and
patio on or about July I for the purpose of soliciting sup-
port for the Petitioner.
Assuming arguendo that Sarnoff and Miranda were ter-
minated or permanently laid off and thus not in posses-
sion of employee status as of July 1, I would still find
that the Employer's conduct in denying them access
warranted setting the election aside. I would do so on
the basis that the Employer's denial of access to these
non-employees was in the nature of a newly promulgated
Employer policy on solicitation by outsiders (non-em-
ployees) which was directed at union organizing. Mir-
anda6 testified that he knew of no written policy with re-
spect to solicitation. The Employer adduced no evidence
that the Employer in fact had any no-solicitation policy
applicable to non-employees. The record is devoid of
any testimony with respect to incidents of non-employee
solicitation permitted or non-employee solicitation pro-
hibited, from which fact I can only deduce the Employer
had no policy with respect to solicitation by outsiders
prior to the July 1 denial of access to Sarnoff and Mir-
anda. I do not decide the case on this basis, however, be-
cause I have concluded that, as of July 1, Sarnoff and
Miranda were employees on temporary lay off and were
viewed as such by their fellow employees.
RECOMMENDATION
Based upon the above resolutions as to credibility,
findings and conclusions, as well as upon the record as a
whole, I recommend that the election be set aside and
that a second election be directed, based upon that por-
6 Miranda was the only witness who testified as to the existence or
non-existence of a written Employer policy on solicitation by outsiders.
1286
PANAVISION, INC. 1287
tion of Petitioner's Objection No. I regarding the Em- with the Board in Washington, D.C., an original and
ployer's denial of access to laid-off employees. seven (7) copies of exceptions thereto, with a supporting
brief if desired. Immediately upon the filing of such ex-
FILING OF EXCEPTIONS ceptions, the party filing the same shall serve a copy
Pursuant to Section 102.69(c) of the Board's Rules and thereof, together with a copy of any brief filed, upon
Regulations, Series 8, as amended, any part may, within each of the other parties, and shall file a copy with the
ten (10) days from the date of issuance of this report, file Regional Director for Region 31 of the National Labor
Relations Board, Los Angeles, California.