Pagerly Detective And Security Agency, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 494 (N.L.R.B. 1984)

494 PAGERLY DETECTIVE AGENCY
Pagerly Detective and Security Agency, Inc. and In-
dependent Union of Professional Technical and
General Service Employees and Douglass A.
Koyste. Cases 4-CA-13330, 4-CA-13384-2,
and 4-CA-13330-5
14 December 1984
• DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS.
ZIMMERMAN AND HUNTER
On 14 October 1983 Administrative Law Judge
William A. Gershuny issued the attached decision.
The Union filed exceptions and a supporting brief,
and the Respondent filed an answering 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,2
At the hearing the judge excluded as inadmissible hearsay certain tes-
timony of employee Chris Jarecki offered by the General Counsel Ac-
cording to the General Counsel's offer of proof Jarecki would have testi-
fied that, shortly after a meeting in October 1982 between dischargee
George aster and the Respondent's president Thomas Pagerly, aster
said to Jarecki, "[C]an you believe it Mr Pagerly wants me to pro-
vide him with a list of employees in support of the union" We find merit
in the Union's exception to the judge's ruling and find that Jareclu's testi-
mony is a prior consistent statement admissible under Rule 801(d)(1)(B)
of the Federal Rules of Evidence The record reveals that the Respond-
ent vigorously attacked the veracity of aster's testimony at the hearing
that Pagerly directed him to provide a list of union supporters prior to
aster's discharge The judge should have permitted the General Counsel
to rebut such a charge against aster by evidence of the prior consistent
statement See United States v Paroch, 703 F 2d 768, 784-787 (4th Co.
1983), United States v Dominguez, 604 F 2d 304, 311 (4th Cir 1979), cert
denied 444 U S 1014 (1980) Nonetheless we find the judge's erroneous
evidentiary ruling was not prejudicial and we adopt his finding that as-
ter's demotion and discharge did not violate the Act Thus, aster's testi-
mony was totally discredited by the judge on the basis of demeanor and
President Pagerly's testimony was totally credited In such circumstances
Jareclu's testimony concerning what aster told Jarecki is insufficient to
disturb the critical credibility resolutions concerning the conversations
between aster and Pagerly We adopt the judge's evidentiary rulings in
all other respects
Chairman Dotson agrees that aster's demotion and discharge did not
violate the Act The Chairman, however, would affirm the judge's exclu-
sion of Jareclu's testimony as hearsay Because there is no contention by
any party that aster's alleged statement to Jarecki was inconsistent with
any other statement ever made by aster concerning preparation of a list
of union supporters, Jareclu's testimony was not offered to rebut a charge
against aster of recent fabrication or improper influence or motive as re-
quired by Rule 801 (d)(1)(B) Cf Baker v Elcona Homes Carp, 588 F 2d
551, 559 (6th Co. 1978) In the Chairman's view the proffered testimony
is therefore excludable under the general rule that an out-of-court prior
consistent statement is inadmissible hearsay 4 Wigmore, Evidence § 1124
at 255 (Chadbourn rev 1972) See also United States v Check, 582 F 2d
668, 677 fn 27 (2d Cir 1978)
2 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 Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
The Union asserts that the judge's decision is the product of bias, hos-
tility, and misconduct against the General Counsel and her witness We
and conclusions but to substitute the attached
Order and notice for that of the judge.3
ORDER
The National Labor Relations Board orders that
the Respondent,. Pagerly Detective and -Security
Agency, Inc., Wernersville, Pennsylvania, its offi-
cers, agents, successors, 'and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any empl4ee about
union support or union activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Wernersville, Pennsylvania office
copies of the attached notice marked "Appendix."4
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by
the Respondent's authorized representative, shall.lx
posted by , the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
have carefully examined the record and find no basis to the Union's alle-
gations
In the absence of exceptions Chairman Dotson would adopt pro forma
the judge's finding that the Respondent violated Sec 8(a)(1) by interro-
gating employee Koyste
3 Relying on Alleluia Cushion Ca, 221 NLRB 999 (1975), the judge
found that the Respondent violated Sec 8(a)(1) when, following the re-
ceipt of an OSHA complaint against the Respondent, its president
Thomas Pagerly remarked to an employee that he would like to get his
hands on the "son of a bitch" who did that and "would drive him right
through the ground" In Meyers Industries, 268 NLRB 493, 497 (1984),
the Board overruled Alleluia and held that "[lin general, to find an em-
ployee's activity to be 'concerted' we shall require that it be engaged in
with or on the authority of other employees, and not by and solely on
behalf of the employee himself" In the absence of evidence in this case
demonstrating that Pagerly's remarks were directed toward the exercise
of concerted activity, that portion of the judge's Order and notice per-
taining to Pagerly's statement is at odds with our holding in Meyers Ac-
cordingly we shall delete the pertinent portion of the judge's Order and
notice and shall substitute a new Order and notice for that of the judge
including an appropriate cease-and-desist provision inadvertently omitted
by the judge
For the reasons stated in Member Zimmerman's dissenting opinion in
Meyers, he would remedy a threat against even one individual engaged in
the implicitly concerted activity of contacting OSHA In addition, he
finds that the majority rule in Meyers does not control the threat at issue
here because that threat was subject to the reasonable interpretation of
forecasting harm not only to individual employees who contact OSHA
but also to any groups of employees who make such contact The latter
activity is undisputedly "concerted" within the meaning of the Act and
cannot be lawfully threatened See Member Zimmerman's dissenting
opinion in D A Collins Refractories, 272 NLRB 931, 933 (1984)
4 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
273 NLRB No. 77
PAGERLY DETECTIVE AGENCY 495
ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaints be
dismissed insofar as they allege violations not
found herein.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union —
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
PAGERLY DETECTIVE AND SECURITY
AGENCY, INC.
DECISION
STATEMENT OF THE CASE
WILLIAM A GERSHUNY, Administrative Law Judge
A hearing was conducted in Reading, Pennsylvania, on
August 17-18, 1983, on complaints alleging the demotion
and discharge of a top-level supervisor and a number of
violations of Section 8(a)(1) of the Act
On the entire record, including my observation of the
witnesses' demeanor, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The complaints allege, the answer admits, and I find
that Respondent is an employer subject to the Act
II. UNFAIR LABOR PRACTICES
A. Background
In August 1982, the Independent Union initiated a
campaign to organize guards and supervisors employed
at Respondent's security and armored car business. Ad-
mittedly, this Union was an ineligible . labor organization
under the Act and, subsequently, another union (the
United Guards Union) organized and became the repre-
sentative of Respondent's guards
The table of organization of the Company includes
Company President Thomas Pagerly,. Company Vice
Presidents David Pagerly and J. Sue Oberly, Personnel
Manager Teri Oberly, a director of security, 2 lieutenants
(one of whom is George Oister), and approximately 30
sergeants, corporals, and PFCs (all of whom are supervi-
sors) There are approximately 125 guards employed by
Respondent.
These cases, however, involve essentially three em-
ployees: Lieutenant Oister (Case 4-CA-13330), mechanic
Donato (Case 4-CA-13384-2), and guard Koyste (Case
4-CA-13330-5).
B. Case 4-CA-13330-5
The evidence is undisputed that in early February
1983 Company Vice President Oberly asked guard
Koyste if the Union sent him a letter and whether he re-
turned "the card." The interrogation of an employee by
management as to his union activity and sympathies is
violative of Section 8(a)(1) of the Act.
• C. Case 4-CA-13384-2
Paragraphs 5(a), (b), and (c) allege a number of viola-
tions of Section 8(a)(1) by Company President Pagerly
On November 15, 1982, by interrogating mechanic
Donato concerning attendance and employee activity at
a union gathering, by creating the impression of surveil-
lance, and by asking him to ascertain and divulge infor-
mation ocncerning union activity and sympathies, on No-
vember 24, 1982, by threatening to harm an unidentified
employee who lodged a safety complaint with OSHA;
and on December 18, 1982, by threatening to deny a
general wage increase if employees selected the Union as
their representative.
In support of these allegations, only the testimony of
mechanic Donato was offered. Based principally on my
observation of his demeanor on the stand, I am com-
pelled to reject his testimony in its entirety.
As a witness, Donato was heavily biased (he had been
discharged for reasons unrelated to this case), evasive,
and lacking in candor His testimony was unconvincing
(and, on cross-examination, vague) and the events he de-
scribed were highly improbable (e.g., despite the fact
that he was the principal union organizer, Donato testi-
fied that he readily turned over to Pagerly, at the latter's
request, a list of employees who had attended a union
function, with markings to indicate which employees
Donato could trust). In addition, his testimony concern-
ing events surrounding the production of the list was
flatly contradicted by three coemployees who had no ap-
parent interest in the case and whose testimony I credit.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also credit the denials of Pagerly, who, based on my
observation of his demeanor as a witness, was a forceful,
convincing, and candid witness whose testimony
throughout rang true.
Nevertheless, this case will not be dismissed in its en-
tirety. As to the allegations of paragraph 5(b), -Pagerly
admitted that, after receiving an OSHA letter listing 11
violations in the garage, he went to the garage and in-
structed Donato to rectify the problems right away and
added, "I'd like to get my hands on the SOB who did
this, -I'll drive him into the ground." Board law is clear
that threats to an employee because of the filing of a
safety complaint with the responsible government ,agency
are unlawful under the Act. Alleluia Cushion Co., 221
NLRB 999 (1975).
D. Case 4-CA-13330 •
Paragraph 5 of this complaint alleges the unlawful de-
motion of Lieutenant Oister to corporal (supervisor) on
November 8 and his unlawful discharge on the following
day because of his refusal "to assist Respondent in secur-
ing a list of employees supporting the Union, so that Re-
spondent could terminate said employees," based on
Parker-Robb Chevrolet, 262 NLRB 402 (1982). The only
supporting testimony offered was that of Lieutenant
Oister. For reasons set forth below, his testimony, like
that of Donato, is rejected in its entirety Accordingly,
this case is dismissed.
Based on my observation of his demeanor as a witness,
I found Oister to be confused, untrustworthy, evasive,
and totally lacking in candor. His testimony conflicted
with his affidavit in that certain conversations as to his
obtaining the listcertamly a most significant bit of evi-
dence—were not given to the Board agent. His testimo-
ny as to what Pagerly asked him to do about a list was
self-contradictory (spy on employees/listen to what they
are saying/prepare a list based on what Pager/y and
other supervisors already knew about employee' senti-
ment). None of the several incidents which were the
basis for his demotion to supervisory corporal were fab-
ricated and, when called to explain them, Oister admitted
their occurrence, but misstated his role (e.g., he neglect-
ed to testify on direct that he missed an important meet-
ing with a bank client because he chose that morning to
go hunting). He was discharged the following day when,
admittedly, he insisted on bringing an hourly employee
(mechanic Donato) to a management meeting at which
there was absolutely no reason for him to believe disci-
pline would be imposed; when he insisted that Donato
remain as a witness, he was terminated because manage-
ment would not be compelled to transact its business in
the presence of an hourly mechanic: Oister- also gave
false testimony as to when he first saw his personnel file
and saw that certain reprimands were omitted. In sum, I
had the clear impression at the hearing that this young
man completely failed to appreciate the sanctity of the
oath taken by a witness and that his testimony was, in
part, exaggerated and, in part, manufactured for purposes
of this case.
[Recommended Order omitted from publication.]