Pinkerton'S Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 538 (N.L.R.B. 1989)

538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Pinkerton's Inc. and Charles F. Keller . Case 6-CA-
20171
June 15, 1989
DECISION AND ORDER
BY MEMBERS JOHANSEN , HIGGINS, AND
DEVANEY
On December 28, 1988, Administrative Law
Judge Irwin H. Socoloff issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief. The General Counsel filed an an-
swering brief in opposition to the Respondent's ex-
ceptions and brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
The Respondent excepts to the judge's finding
that it violated Section 8(a)(3) and (1) of the Act
by refusing to offer employment to the three al-
leged discriminatees. In particular, the Respondent
excepts to the judge 's imputing to it Supervisor
MacDonald 's knowledge of the organizational ac-
tivity of the alleged discriminatees at G. Services.
We find no merit in this exception.
Before the Respondent obtained the contract to
provide security guard service at the USX Tower,
the Respondent's predecessor, G. Services, provid-
ed that service. MacDonald had been a supervisor
for G. Services and was hired as a supervisor by
the Respondent when it acquired the USX con-
tract. The judge, in part, used MacDonald's knowl-
edge of the alleged discriminatees ' activities as a
basis for finding the Respondent had knowledge of
those activities . We agree. Activities , statements,
and knowledge of a supervisor are properly attrib-
utable to the employer, 2 and here, the Respondent
did not affirmatively establish such a basis for ne-
gating the judge's imputation of MacDonald's
knowledge to the Respondent.
Similarly, the Respondent questions the judge's
reliance on MacDonald 's statement that the alleged
discriminatees were not hired because of their
union activities as a basis for determining the Re-
' The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F . 2d 362 (3d Cit. 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 See Colson Equipment, 257 NLRB 78 (1981 ); Glenroy Construction
Co., 215 NLRB 866 (1974).
spondent's motive for failing to offer employment
to the alleged discriminatees . However, before the
Board will consider not relying on such statements,
the Respondent must establish that the statements
were not based on MacDonald's knowledge of the
reasons for the Respondent's conduct. The Re-
spondent failed to meet this burden.
In any event , assuming arguendo , that the Re-
spondent did not obtain information concerning or-
ganizational activity at G. Service from MacDon-
ald, the record establishes that the Respondent had
numerous other sources for this information. For
example, in April 1987 , when the Respondent's of-
ficials toured the USX Tower to obtain information
for the Respondent 's security guard services bid,
notices of union activity , including election results,
and a list of candidates for union stewards were
prominently posted in the building . Thus, this evi-
dence, coupled with the judge's finding that the
Respondent 's reasons for failing to hire the alleged
discriminatees were "entirely unconvincing," war-
rants an inference of the Respondent 's knowledge
of organizational activity , and ultimately a finding
that the Respondent violated Section 8(a)(3) and
(1) of the Act.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Pinkerton's
Incorporated, Pittsburgh, Pennsylvania, its officers,
agents, successors , and assigns, shall take the action
set forth in the Order.
Mary Theresa Enyart, Esq., for the General Counsel.
Jon Hogue, Esq., of Pittsburgh, Pennsylvania, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. Upon
a charge filed on July 6, 1987, by Charles F. Keller, an
individual , against Pinkerton's Inc. (the Respondent), the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 6, issued a com-
plaint dated August 27, 1987, alleging violations by Re-
spondent of Section 8(a)(3) and ( 1) and Section 2(6) and
(7) of the National Labor Relations Act (the Act). Re-
spondent, by its answer, denied the commission of any
unfair labor practices.
Pursuant to notice , trial was held before me in Pitts-
burgh, Pennsylvania, on November 30, 1987, at which
the General Counsel and the Respondent were represent-
ed by counsel and were afforded full opportunity to be
heard , to examine and cross -examine witnesses, and to in-
troduce evidence. Thereafter, the parties filed briefs
which have been duly considered.
295 No. 62
PINKERTON'S INC.
On the entire record in this case,' and from my obser-
vations of the witnesses , I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent , a Delaware corporation , has an office and
place of business in Pittsburgh , Pennsylvania , where it is
engaged in the operation of a security guard service.
During the year ending June 30, 1987, Respondent, in
the course and conduct of its business operations, de-
rived gross revenue in excess of $ 1 million and per-
formed services valued in excess of $50,000 in States
other than the Commonwealth of Pennsylvania and pur-
chased and received , at its Pennsylvania facilities, goods
and services valued in excess of $50,000 directly from
points outside the Commonwealth . I find that Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
International Union, United Plant Guard Workers of
America, Local 205 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent provides a security guard service to vari-
ous customers located throughout the United States. Its
Pittsburgh, Pennsylvania, district office, involved herein,
covers portions of West Virginia , Ohio, and Pennsylva-
nia and employs some 500 security guards, all of whom
are unorganized.
In the mid-May to mid-June 1987 period, Respondent
obtained a contract to provide security services at the
USX Tower in downtown Pittsburgh, beginning July 1,
1987. Previously, that function had been performed by
G. Services , Inc., using a guard force that numbered ap-
proximately 27. The Tower guards employed by that
Company had engaged in organizational activity during
the January to June 1987 period , resulting in a Board-
conducted election held on April 10, and certification of
the Union on April 23, 1987.
When Respondent began performance of its contract
at the USX Tower, it hired many of the security guards
previously employed there by G. Services. However, it
refused to hire applicants Charles Keller, James Probo,
and Frederick Mehlmauer , who had also been employed
at the Tower by G. Services, Inc.
In the instant case, the General Counsel contends, and
Respondent denies, that Respondent refused to offer em-
ployment to Keller, Probo, and Mehlmauer because of
their activities on behalf of the Union while employed by
G. Services, in violation of Section 8(aX3) of the Act.
Also at issue is whether Respondent violated Section
8(a)(1) of the Act by informing those individuals that Re-
' General Counsel 's unopposed motion to correct certain errors in the
transcript is granted Respondent's posthearing motion , opposed by Gen-
eral Counsel , to stoke certain testimony and documentary evidence is
denied.
539
spondent refused to employ then because of their union
activities.
B. Facts2
Charles Keller worked as a security guard at the USX
Tower from October 1986 through June 30, 1987, when,
as noted , Respondent took over the security guard func-
tion theretofore performed by G. Services, Inc. Keller
worked the night shift, from 11 p.m. to 7:30 a.m. James
Probo was employed as a security officer at the Tower
from December 3, 1986 , until June 30, 1987. Originally
hired to work the afternoon shift, from 3 p.m. to 11:30
p.m., Probo transferred to the night shift in January
1987. Frederick Mehlmauer's employment by G. Serv-
ices, as a security guard at the Tower, was from October
1986, until June 30, 1987 . Mehlmauer was also assigned
to the night shift.
At the end of January 1987, Keller initiated contact
with the Union. Early in February, he and Mehlmauer
met with Local 205's president, Kerry Lacey, and Keller
obtained union authorization cards . Such cards were
signed by Keller, Probo, and Mehlmauer . In addition,
Keller , Probo, and employee Rashik distributed cards, at
work, to other employees.
On February 17, 1987, the Union filed a representation
petition with the Board , seeking a unit of G. Services se-
curity guards employed at the USX Tower. A hearing
was conducted on February 26, attended, for the Union,
by Keller, Mehlmauer and Rashik . Keller was the only
employee to testify . Thereafter , on April 10, an election
was held at the Tower, in split shifts , and Keller served
as the Union's observer at the morning session. The
Union won the election and, on April 23, it was certified.
In mid-May, the employees elected Keller as their
chief steward , and Probo and employees Simms and Wil-
liams as shift stewards . Thereafter , on May 8 and 11,
1987, the Union sent letters to G. Services , requesting
meetings for the purposes of collective bargaining.
Keller's name was shown on the letters as the Union's
chief steward.
G. Services Security Manager Alan Palagy advised the
employees on June 1, 1987, that the Company had lost
its contract at the Tower and that, effective July 1, the
security guard service would be provided by Pinkerton's.
The employees were told that if they were interested in
employment by the new company, they could apply for
jobs at the Pinkerton 's offices.
Keller reported to Respondent's offices on June 5,
1987, where he completed an employment application
and was interviewed by Respondent's personnel adminis-
trator , Rosemary Regan. She asked him questions about
his work experience and, also, inquired about his shift
preferences . Keller stated that he preferred the night
shift but that he was willing to work any shift. Regan
told Keller that she would be in touch with him. Probo
also appeared at Respondent's offices on June 5, com-
pleted an application and was interviewed by Regan. She
"The factfindings contained herein are based on a composite of the
documentary and testimonial evidence introduced at trial . Where neces-
sary, in order to reserve significant testimonial conflict, credibility resolu-
tions have been set forth , infra.
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told him that she was glad to see that he had a college
degree in security administration and criminal justice and
stated that someone with that sort of educational back-
ground was welcome . In response to inquiry , Probo also
stated a preference for the night shift , but said that he
could work other shifts . Mehlmauer submitted his appli-
cation to Respondent on June 12 . Questioned about shift
preference , he stated that he was working the night shift
at that time , but that any shift was possible.
Laurie MacDonald served as the first -shift supervisor
for G. Services through June 30, 1987. As of July 1,
1987, he became Pinkerton 's assistant security manager.
In that position , all three shift supervisors report to him.
It is undisputed that MacDonald was a statutory supervi-
sor when he worked for G. Services and that he is, now,
a supervisor for Respondent within the meaning of the
Act. On June 27, 1987, Probo asked MacDonald why he
had not been hired by Pinkerton's. MacDonald said that
he did not understand it as he had recommended Probo
to Respondent "over and over again ." Throughout June,
MacDonald made similar comments to Keller.
On July 6, Keller, Probo, and Mehlmauer approached
MacDonald at the Tower and Keller asked if MacDon-
ald had heard anything more about hiring . According to
the testimony of Probo, MacDonald replied:
[W]ell, guys, I got some bad news for you . It seems
somebody has dropped a dime on you guys, and
there is nothing more I can do . Mr. Tranelli, up-
stairs, would love to hire you, he would like to
have the experienced people in the building that
know the building and know the job , but his hands
are tied , somebody at the front office doesn't want
you guys employed because you are union pushers,
union organizers . . . . Pinkerton does not want that
aggravation right now.
Probo further testified that Keller then asked if MacDon-
ald was telling them that they would not be hired be-
cause of their union activities, and MacDonald stated,
"that's about the size of it right now." Probo's testimony
concerning this conversation was fully corroborated by
Keller, while Mehlmauer's recollection of the conversa-
tion was considerably less detailed . MacDonald, in his
testimony, recalled speaking to Keller on July 6, but
could not remember if Probo and Mehlmauer were also
there . He testified that after Keller asked why he had not
been hired MacDonald stated that he did not know and
that "maybe somebody dropped a dime on you." Mac-
Donald further testified that, at the time of the conversa-
tion , he had no knowledge concerning the union activi-
ties of the three individuals.
Keller and Probo impressed me as truthful witnesses,
in possession of clear recollections of the conversation of
July 6. MacDonald , on the other hand , did not seem to
me to be attempting truthfully to relate that conversa-
tion . Moreover , MacDonald's claimed lack of knowledge
of the employees ' union activities is belied by undisputed
evidence that he observed Keller acting as union observ-
er on the day of the election , and that MacDonald was
advised by Probo, in May 1987, that Probo had been
elected third-shift steward . In addition , G. Services Secu-
rity Manager Palagy testified that, during the organizing
campaign , MacDonald attended G. Services ' campaign
strategy meetings at which Keller , Probo, and Mehl-
mauer were clearly labeled as union supporters . In light
of the above , I credit the testimony of Keller and Probo,
discredit the testimony of MacDonald and find that on
July 6, 1987, MacDonald told the employees that Re-
spondent refused to hire them because of their union ac-
tivities.
On May 29 , 1987, Respondent 's personnel administra-
tor, Rosemary Regan, placed an advertisement in a local
newspaper , seeking 25 security guards for the USX
Tower. The advertisement sought "mature individuals
with excellent communication skills . . . height and
weight must be commensurate ." Thereafter, Regan inter-
viewed individuals who responded to the advertisement,
as well as the G. Services guards who applied for work
with Respondent . In all, she hired some 25 security
guards , 16 of whom had worked for G. Services. The
record evidence is undisputed that Regan effectively
made all hiring decisions.
Regan testified that after conducting an interview and
reviewing an individual 's application she placed it in one
of three piles . Pile 1 contained "the very good ones that
I liked," pile 2, "the average" applicants , and pile 3,
those "not for USX."
Keller's responses to questions contained on the em-
ployment application indicated that he had once been ar-
rested , but had never been convicted of a crime. Regan
testified that after interviewing Keller and reviewing his
application she placed him in pile 1. She further testified
that, at that point, she "thought he was excellent , excel-
lent for the job, everything." However , according to
Regan , she decided not to hire him when a routine check
of police records revealed that in August 1986 Keller
had been arrested for driving under the influence of alco-
hol and , while not convicted , had been placed in a reha-
bilitation program . Regan claimed that, in reaching that
decision, she relied upon an undated and unsigned hand-
written note contained in Keller's file, revealing the
arrest, although the author of the note and its date of
preparation were unknown to her. When confronted
with the fact that on June 30, 1987, she hired Anthony
Moore as a guard at the USX Tower, despite knowledge
that Moore had been convicted of a crime , disorderly
conduct , Regan testified that "that was a judgment call
on my part."
Mehlmauer, in his written application , stated that he
was unavailable to work between the hours of 8 a.m. and
8 p.m. However , as noted, he orally informed Respond-
ent, when he applied for work, that any shift was possi-
ble. Regan placed a notation on the application that
Mehlmauer "prefers 11 -7:30" shift . She testified that,
while she originally placed the application in pile 1, she
decided not to hire Mehlmauer because his hours of
availability were too limited and she "wanted someone
who could work various shifts ." Yet, Regan conceded
that on June 30, 1987, she hired applicant Paul Pitassi,
despite the fact that Pitassi stated on his application that,
because of school commitments , he could not work be-
tween 8 a . m. and 4 p.m., thus making him unavailable to
PINKERTON'S INC. 541
work the morning and afternoon shifts . Indeed , Pitassi
testified that on June 15 he orally advised Regan that he
could work the night shift only, and that Regan stated
that "there was no problem with that." When, during
her testimony , Regan was asked to explain the apparent-
ly disparate treatment of Mehlmauer and Pitassi, she
stated that Pitassi "just seemed to fit the image."
With respect to Probo, Regan testified that she placed
his application in pile 2 or pile 3 because his height, 5
feet and 7 inches, and weight, 275 pounds, were not
properly proportioned. Yet, despite this factor, obvious
to Regan at the interview , she continued to process
Probo's application by conducting a police record check
and contacting his references . While Regan made various
notations on this and other applications , she made no no-
tation on the Probo application concerning height and
weight.
Regan's supervisor, Jay Crawford, Pinkerton's district
manager , testified that at the time that hiring decisions
were made he and Regan were unaware that the G.
Services employees had engaged in organizational activi-
ties . He stated:
ed him on his qualifications and, following the interview,
she continued to process his application . That action
strongly suggests , contrary to Regan 's testimony, that
Probo's height and weight did not , in Respondent 's view,
disqualify him for continued employment as a security
guard at USX Tower.
The record evidence reveals extensive union activities
by Keller, Probo, and Mehlmauer. Respondent had
knowledge of, and bore animus toward , those activities,
as revealed by MacDonald's statement to the three indi-
viduals . Further, Respondent has advanced entirely un-
convincing reasons for its refusal to hire them . The evi-
dence of disparate treatment , in particular, persuades me
that the reasons advanced for the failures to hire are pre-
textual . I find and conclude that , as revealed in MacDon-
ald's July 6, 1987 conversation , with the individuals in
question , Respondent refused to hire Keller, Probo, and
Mehlmauer, on or about July 1, 1987, because of their
union activities, in violation of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
There was no mention of a union with anybody
at anytime . And, very honestly, if I might add, if
there was, why would I hire the people if I thought
I was going to, you know, assume a union?
C. Conclusions
Based on the credited testimony of Keller and Probo, I
find that, on July 6, 1987, Respondent, by Supervisor
MacDonald, violated Section 8(a)(1) of the Act. On that
date, as set forth in the statement of facts, MacDonald
informed Keller, Probo, and Mehlmauer that Respondent
refused to employ them because of their union activities.
As further shown in the statement of facts, Laurie
MacDonald , while a supervisor for G. Services , Inc., ac-
quired knowledge of the union sentiments and extensive
union activities of Keller, Probo, and Mehlmauer. He
carried that knowledge with him when he became a
high-level supervisor for Respondent. That knowledge is
imputable to Respondent. McCain Foods, 236 NLRB 447
(1978). By MacDonald 's statement of July 6, Respondent
admitted to Keller, Probo, and Mehlmauer that it would
not hire them solely because they were "union pushers."
In these circumstances , General Counsel' s prima facie
showing of unlawful refusals to hire is a very strong one.
Regan 's testimony itself establishes that Respondent re-
garded Keller and Mehlmauer as among the best quali-
fied of the applicants . Her contention that she decided
not to hire Keller because he had once been arrested for
driving under the influence of alcohol, is difficult to be-
lieve in light of her contemporaneous decision to hire ap-
plicant Moore, with knowledge that Moore had been
convicted of disorderly conduct . Indeed , at trial, Regan
could not draw a meaningful distinction between the two
cases . Likewise , Regan's claim to have rejected Mehl-
mauer because he was available only for the night shift is
belied by her contemporaneous decision to hire Pitassi
who had explicitly informed her that he could not work
shifts other than the night shift. After meeting Probo,
and observing his height and weight , Regan compliment-
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close , intimate, and
substantial relationship to trade, traffic , and commerce
among the several states and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practice conduct in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
1. Pinkerton's Inc . is an employer engaged in com-
merce, and in operations affecting commerce , within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Plant Guard Workers of
America, Local 205 is a labor organization within the
meaning of Section 2(5) of the Act.
3. By informing employees that Respondent refused to
employ them because of their activities on behalf of the
Union , Respondent engaged in unfair labor practice con-
duct within the meaning of Section 8(a)(1) of the Act.
4. By refusing to hire Charles Keller, James Probo,
and Frederick Mehlmauer , because of their activities on
behalf of the Union , Respondent has engaged in unfair
labor practice conduct within the meaning of Section
8(a)(3) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed3
ORDER
The Respondent, Pinkerton's Inc., Pittsburgh, Pennsyl-
vania, its officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Informing employees that Respondent refused to
employ them because of their activities on behalf of the
Union.
(b) Refusing to hire employees because of their activi-
ties on behalf of the Union.
(c) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Charles Keller, James Probo, and Frederick
Mehlmauer immediate employment in the positions for
which they applied or, if those jobs no longer exist, in
substantially equivalent positions , without prejudice to
their seniority or any other rights or privileges.
(b) Make those employees whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against them . Backpay shall be computed as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987).4
(c) Expunge from its files any reference to the refusals
to hire and notify Keller, Probo, and Mehlmauer, in
writing, that this has been done.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records , timecards,
personnel records and reports and all other records nec-
essary to analyze the amount of money due under the
terms of this Order.
(e) Post at its Pittsburgh, Pennsylvania facility, copies
of the attached notice marked "Appendix."e Copies of
a If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall , as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
4 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S C. § 6621 Interest accrued before January 1 , 1987 (the effective
date of the amendment), shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977).
s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
the notice, on forms provided by the Regional Director
for Region 6, after being signed by Respondent 's author-
ized representative , shall be posted by it immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken by Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT inform employees that we refused to
hire them because of their activities on behalf of the
Union, International Union, United Plant Guard Workers
of America, Local 205.
WE WILL NOT refuse to hire employees because of
their activities on behalf of the Union.
WE WILL NOT in any like or related manner interfere
with , restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Charles Keller, James Probo, and
Frederick Mehlmauer immediate employment in the po-
sitions for which they applied or, if those jobs no longer
exist, in substantially equivalent positions , without preju-
dice to their seniority or any other rights or privileges
and WE WILL make them whole for any loss of earnings
and other benefits resulting from the discrimination
against them , less any net interim earnings, plus interest.
WE WILL expunge from our files any reference to the
discriminatory refusals to hire and notify the effected
employees , in writing, that this has been done.
PINKERTON'S INC.