Thomas, S. B., Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1981

256 N.L.R.B. 791 (N.L.R.B. 1981)

S. B.H TI()MAS. INC 791
S. B. Thomas, Inc. and Lynn Bell. Case 22-CA-
9688
June 22, 1981
DECISION AND ORDER
On February 19, 1981, Administrative Law
Judge D. Barry Morris issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions and a brief
responding to Respondent's exceptions and sup-
porting its cross-exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, S. B. Thomas,
Inc., Totowa, New Jersey, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT engage in surveillance of
union activities, including the distribution of
leaflets, by photographing such activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
S. B. THOMAS, INC.
256 NLRB No. 132
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge: This
case was heard at Newark, New Jersey, on September 2
and 3, 1980. A charge was filed on January 8, 1980, and
a complaint was issued on March 28, 1980, and amended
on September 2, 1980, alleging that S. B. Thomas, Inc.,
herein called Respondent, violated Section 8(a)(1) of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed an answer denying the com-
mission of the alleged unfair labor practices.
The parties were given full opportunity to participate,
to produce evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs were
filed by the General Counsel and Respondent.
Upon the entire record of the case, including my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation engaged in
the manufacture, sale, and distribution of baked goods.
Its principal office and place of office is in Totowa, New
Jersey. During the 12 months preceding the issuance of
the complaint, Respondent sold baked goods valued in
excess of $50,000 to customers located outside the State
of New Jersey. Respondent admits, and I so find, that it
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint, as amended, alleges that Respondent
violated Section 8(a)(1) of the Act by directing Lynn
Bell, an off-duty employee, to cease distributing leaflets
and leave its facility, and by photographing the leafleting
activities. Respondent denied the allegations, claiming
that Bell was not an employee of Respondent. The issues
are:
1. Was Bell an off-duty employee of Respondent.
2. Was Respondent permitted to direct Bell to cease
distributing union leaflets to its employees and leave its
facility.
3. Was Respondent permitted to photograph the lea-
fleting activities.
B. The Facts
1. Background
In May 1979 Bell began working for American Bak-
eries Corporation, herein called American, where she
was represented for collective-bargaining purposes by
Local 50, Bakery, Confectionery, and Tobacco Workers'
Union, AFL-CIO, herein called the Union or Local 50.
On October 51 she and four other American employees
I All dales refer to 1979 unless otherwise specified
S. B. IIIONIAS. INC 91
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed a decertification petition to decertify Local 50 as
their representative. The petition was dismissed because
it was not timely filed. However, Bell was informed by a
representative of the National Labor Relations Board
that the American employees were part of a bargaining
unit which consisted also of employees of Continental
Baking Company and Respondent, and that any decertifi-
cation petition would have to be supported by signatures
of at least 30 percent of the employees in these three
shops. The dismissal of the decertification petition was
appealed and the appeal had not been decided as of the
time of this hearing.
Bell testified that the decertification petition was filed
because the American employees believed that they were
not receiving adequate representation from Local 50 and
that the Union forced them to accept their current col-
lective-bargaining agreement, which had not been ap-
proved in the American shop. As a result of the dismissal
of the petition, Bell and several other employees formed
the Committee for a Fair and Honest Union. The pur-
pose of the committee was to keep Local 50 membership
informed as to the status of the decertification petition
and to supply information concerning the collective-bar-
gaining agreement. In this connnection, the committee
started a newsletter called Bakers' Voice, which was dis-
tributed in the various shops represented by Local 50.
Bell testified that the committee had reports that Re-
spondent's employees had similar problems with Local
50 and that they had also attempted to file a decertifica-
tion petition. Additionally, the committee sought the sup-
port of Respondent's employees in the event that the
appeal of the dismissal of the decertification petition was
granted and subsequent additional signatures would be
needed for the requisite 30-percent showing of interest.
2. Bell's status as an off-duty employee
As stated earlier, Bell's employment with American
commenced in May. She was laid off in September. She
was then employed by two other companies, unrelated to
either American or Respondent, and she returned to
American in July 1980.
3. Multiemployer association
Respondent is part of a multiemployer association
whose members include Respondent, American, and
Continental. Respondent's director of industrial relations
testified that the purpose of the association is to negotiate
wage increases and benefits for their employees who are
members of Local 50. The members of the Association
participate in joint negotiations which culminate in a col-
lective-bargaining agreement which covers areas such as
wages, welfare, pensions, sick pay, holidays, and vaca-
tions. In addition, each association member signs a sepa-
rate collective-bargaining agreement with Local 50 that
deals with unique working conditions as they concern
each individual member.
4. Leafleting activities
Bell and her companion, Gary Hansjergen,2 first went
to Respondent's facility on November 27 to distribute
copies of the Bakers' Voice. The leafleting occurred at
the back gate of Respondent's plant which is situated in
a small industrial park and has a parking lot enclosed by
a wire fence. The fence has a gate with two swinging
doors that open inward into the parking lot. Each of the
doors is approximately 10 feet wide and the driveway is
approximately 20 feet wide. Outside the fence there is a
grassy area enclosed by a curb. The area is fairly isolated
with a limited amount of traffic and no pedestrians.
On November 27 Bell and Hansjergen were at Re-
spondent's back gate from approximately 1:30 to 3:30
p.m., during a shift change. They were distributing
copies of the Bakers' Voice by standing to the side of the
driveway, holding up the copies as cars approached. If
the cars slowed down or stopped, the driver would be
handed a copy and either Bell or Hansjergen would
briefly explain their reason for being there. If an employ-
ee wished to speak at length, he would speak to Bell. If
the car stopped and there was another car behind, either
the car in front would proceed, or the car behind would
pull around the stopped car. During the time that Bell
and Hansjergen were there approximately 30 to 40 cars
passed through the gate.
The facts are in dispute as to where Bell and Hansjer-
gen were standing. On direct examination Bell testified
that she stood on the grassy area between the gate and
the street. Respondent's witnesses, on the other hand,
testified that Bell and Hansjergen were standing inside
the parking lot. Thus, Roberts testified that Bell was
standing between 6 to 10 feet inside the gate; Hollings-
worth testified that Bell distributed some leaflets approxi-
mately 30 feet inside the gate; Jackson testified that Bell
and Hansjergen were about 6 to 8 feet inside the gate;
and Mertz testified that Bell and Hansjergen were dis-
tributing the newsletters approximately 10 feet inside the
gate. Hansjergen testified that he and Bell were standing
on both sides of the gate. On cross-examination Bell ad-
mitted that she was standing I or 2 feet inside the gate.
Except for the distance inside the gate, it appears that
the testimony is not conflicting. The gates swing into the
parking lot and, as noted above, each gate is approxi-
mately 10 feet wide. Both Bell and Hansjergen testified
that they were at the gate and Bell conceded that she
was 1 or 2 feet inside the gate. Accordingly, based on
the testimony, I find that Bell and Hansjergen were dis-
tributing the leaflets several feet inside the parking lot
and thus on Respondent's property.
During the leafleting, Bell and Hansjergen were ap-
proached by one of Respondent's security guards and a
police officer. Hansjergen credibly testified that the
guard approached him and told him that Respondent did
not want Bell and Hansjergen leafleting at the gate and
would like them to leave. Subsequently, a policeman
came, asked Bell and Hansjergen for identification, and
2 Hansjergen, a taxi driver, was not employed by any association
member nor was he a member of Local 50. His sole reason for leafleting
was to assist Bell.
S. B. THOMAS, INC. 793
stated that he had received a call from the Company
about their activities. The policeman then drove inside
the parking lot, went to the guardhouse, and returned a
few minutes later. He told Bell and Hansjergen not to go
on company property and not to block traffic. The po-
liceman did not issue a summons nor did he erect a barri-
cade for traffic control.
Bell and Hansjergen returned to Respondent's facility
on December 27 about the same time in the afternoon,
when the shift was changing. Again they stood at the
same location, at the gate, several feet inside the parking
lot, on Respondent's property. This time they were dis-
tributing the next edition of Bakers' Voice. As before,
their method of distribution was to hold up copies of the
paper as the cars came by. If the car slowed down they
would then approach the car and hand the paper to the
car's occupants. Again there was little traffic going in
and out of the driveway. During the time period that
Bell and Hansjergen were there, approximately 20 to 30
cars pulled in and out of the driveway. The same guard
asked them to leave. Subsequently, Arlene Mertz, Re-
spondent's supervisor of guards, drove out of the parking
lot, parked across the street from the gate, rolled down
her window, pointed a camera at Hansjergen, and
snapped a picture. Hansjergen credibly testified that
Mertz told him that she worked for the security depart-
ment of Respondent and that the Company did not want
any leafleting and did not want Bell and Hansjergen on
company property. Shortly after this episode, a police of-
ficer arrived. He asked Bell and Hansjergen for identifi-
cation and also asked one of Respondent's employees,
who at the time was talking to Bell, to supply identifica-
tion. The policeman then went inside the parking lot to
the guardhouse and returned a few minutes later with
Mertz. The policeman told Bell and Hansjergen that they
were not permitted to be on company property and that
they could not block traffic. The policeman did not issue
a citation to anyone nor did he erect a barricade for traf-
fic control.
C. Discussion and Analysis
1. Bell's status as an off-duty employee
Bell testified that she was laid off from American in
September 1979, then worked for two companies unrelat-
ed to American and returned to American in July 1980.
When asked whether the jobs with the other two compa-
nies were on a full-time basis, Bell replied that "they
were full time but I was waiting to be recalled."
In D. H. Farms Co., 206 NLRB 111, 113 (1973), the
Board, in considering voting eligibility of laid-off em-
ployees, stated that the critical question which must be
answered is whether the laid-off employees enjoyed a
"reasonable expectancy of recall." The Board reaffirmed
its position that the resolution of the question "depends
on objective factors, including the past experience of the
employer, the employer's future plans, and the circum-
stances of the layoff, including what the employees were
told as to the likelihood of recall." To like effect is Acme
Industrial Company, Subsidiary of Jergens, Inc., 227
NLRB 249, 250 (1976), cited by the General Counsel.
In the instant proceeding the only evidence relating to
the question of whether Bell enjoyed a "reasonable ex-
pectancy of recall" was her testimony that "I was wait-
ing to be recalled." There was no evidence adduced with
respect to the "objective factors" called for in D. H.
Farms, supra. The record contains no evidence concern-
ing such factors as the Employer's experience, future
plans, circumstances of the layoff, whether there was a
decline of sales, etc. Indeed, there was even no testimony
with respect to what Bell was told as to the likelihood of
recall. Accordingly, I conclude that the General Counsel
has not made the requisite showing that Bell enjoyed a
reasonable expectancy of recall. Therefore, I find that,
during the period of her leafleting activities, Bell was not
an off-duty employee of American.
2. Leafleting
The General Counsel concedes that if, as I have found,
Bell was not an off-duty employee, the Court's decision
in NV.L.R.B v. Babcock & Wilcox Company, 351 U.S. 105
(1956), would control. In that case the Supreme Court
held (at 112) that an employer may prohibit a nonem-
ployee from distributing union literature on company
property "if reasonable efforts by the union through
other available channels of communication will enable it
to reach the employees with its message .... " Indeed,
in its brief the General Counsel recognizes that "if Bell is
found not to be an off-duty employee, but rather a non-
employee organizer she would have to consider alterna-
tive means of communication first, before asserting her
rights to be on the Employer's property."
Bell testified that she could have distributed the leaf-
lets in the grassy area between the fence and the public
street. While she conceded on cross-examination that she
was standing I or 2 feet inside the gate, on direct exami-
nation she testified that she was not standing on compa-
ny property when distributing the leaflets. In addition, it
appears from the record that, after the police officer
spoke to Bell and Hansjergen, the two continued to dis-
tribute the leaflets outside the gate, off Respondent's
propert). :'
As noted previously, I have found that Bell and Hans-
jergen were distributing the leaflets in the parking lot, on
Respondent's property. It has not been shown that other
means of communication were unavailable. On the con-
trary, the record indicates that Bell considered the grassy
area between the fence and the road adequate for the dis-
tribution.4 Accordingly, I conclude that Respondent did
not violate the Act by directing Bell and Hansjergen on
' Hansjergen testified that the policeman told him "you can go about
vour busines here" but "ou can't be on company property" Similarly, I
credil the following testimony of Mertz
Q hen the police arrived where were they?
A The.: were out on the street they went off of the company
propert y
' Hell testified that n a third occasion. January 10 19S0. she distribut-
cd Irallt "oni the gras\, .ctionl and on the culrb"
S B. THOMAS, INC.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two occasions to cease distributing literature and to leave
its facility.5 The allegations are therefore dismissed.6
3. Photographing of the leafleting
The evidence shows that on December 27, while Bell
and Hansjergen were distributing the leaflets, Mertz
parked her car across the street from the gate and at-
tempted to photograph the leafleting. Mertz first rolled
down her window to take a picture and then got out of
her car to attempt to photograph Bell's face. I credit
Mertz' testimony that at the time the picture was taken
Bell and Hansjergen were inside the gate, on company
property, and that there was one employee at the gate
"who had stopped to receive a pamphlet." Mertz further
testified that she was given no reason by her superior
when instructed to photograph Bell and Hansjergen.
In The May Department Stores Company, 184 NLRB
878, 885 (1970), the Board stated:
Respondent's display of a camera at the employ-
ees' entrance during the handbilling activities, irre-
spective of whether pictures of employees were
taken, would inevitably tend to have a coercive and
restraining effect upon the employees. The employ-
ees would have no knowledge why a camera would
be displayed except to gather evidence to be used
against them.
While an employer may under certain circumstances
photograph union activities," no justification for Re-
spondent's action has been demonstrated in this proceed-
ing. See Holly Farms Poultry Industries, Inc., 186 NLRB
210, 213 (1970). Indeed, when Mertz was asked why she
was instructed to photograph Bell and Hansjergen, she
testified that she was given no reason. 9
s The General Counsel also contends that Respondent violated the Act
by ordering Bell and Hansjergen to stop leafleting outside the plant gate.
I find no evidence of Respondent having done this. On the contrary, I
credit Mertz' testimony that Bell and Hansjergen were leafleting outside
the gate and that Mertz did not ask them to leave.
6 The General Counsel contends that, since Respondent and American
are both members of a multiemployer bargaining association, if Bell is
considered to be an employee of American she must also be considered
to be an employee of Respondent. Since I have found that Bell was not
an off-duty employee of American, I need not reach the question. How-
ever, even were I to have found Bell to be considered an off-duty em-
ployee of American, the General Counsel has cited no cases which stand
for the proposition that she must also be considered an employee of Re-
spondent. Ford Motor Company (Romeo Tractor & Equipment Plant), 222
NLRB 855 (1976), cited by the General Counsel, is clearly distinguish-
able. In Ford the Board pointed out that the employee distributing the
literature was at all material times "an employee of the Ford Motor
Company" (id. at 857).
Mertz corroborated Bell's and Hansjergen's testimony that she rolled
down her window to take the initial picture. While Mertz denied that she
then got out of her car to take additional pictures, I credit Bell's and
Hansjergen's testimony to the contrary.
s An employer may obtain photographic evidence of strike violence
and mass picketing for evidence in a subsequent legal proceeding See
Simplex Time Recorder Company, 165 NLRB 812, 816 (1967), enfd. 401
F.2d 547 (Ist Cir. 1968).
g Respondent's brief states that Bell was photographed "for purposes
of identification." No such reason was stated by Respondent's representa-
tives who testified at the hearing. More important, however, is the fact
that the evidence is uncontroverted that both Bell and Hansjergen had
already provided identification on November 27, when requested to do
so by the police officer.
Based on the foregoing, I find that Respondent, by
photographing the leafleting, created the impression of
surveillance among its employees, thereby interfering
with the Section 7 rights of its employees, in violation of
Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By photographing the distribution of leaflets, Re-
spondent engaged in the surveillance of union activities
in violation of Section 8(a)(l) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the Act in any other
manner alleged in the complaint.
THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice, I find it necessary to order Re-
spondent to cease and desist therefrom and to take af-
firmative action designed to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER
The Respondent, S. B. Thomas, Inc., Totowa, New
Jersey, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Engaging in surveillance of union activities, includ-
ing the distribution of leaflets, by photographing such ac-
tivities.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its facility in Totowa, New Jersey, copies
of the attached notice marked "Appendix." It Copies of
said notice, on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
'o In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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S B THOMAS, INC. 795
(b) Notify the Regional Director for Region 22, in
vriting, within 20 days from the date of this Order, what
teps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that those allegations of the
complaint as to which no violations have been found are
hereby dismissed.