Universal Syndications, Inc., (2006)

• Docket Number: 08-CA-35901

Universal Syndications, Inc. and Maggie Engelhart. Case 8-CA–35901

July 28, 2006

DECISION AND ORDER

By Chairman Battista and Members Schaumber and Kirsanow

On April 10, 2006, Administrative Law Judge Michael A. Rosas issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the judge’s decision.

The National Labor Relations Board has delegated 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.

ORDER

The recommended Order of the administrative law judge is adopted and the complaint is dismissed.

Dated, Washington, D.C. July 28, 2006

Robert J. Battista , Chairman

Peter C. Schaumber, Member

Peter N. Kirsanow, Member

(seal) National Labor Relations Board

Steven Wilson, Esq., for the General Counsel.

Todd T. Morrow, Esq., of Canton, Ohio, for the Respondent.

DECISION

Statement of the Case

Michael A. Rosas, Administrative Law Judge. This case was tried in Cleveland, Ohio, on December 8–9, 2005. The charge was filed by Maggie Engelhart on June 7, 2005; the first amended charge was filed August 29, 2005; and the complaint was issued August 31, 2005.[1] The complaint alleges that the Respondent, Universal Syndications, Inc., violated Section 8(a)(1) of the National Labor Relations Act (the Act) by threatening adverse action if employees discussed certain conditions of employment with other employees, subjected an employee to surveillance because the employee engaged in protected concerted activity, and subsequently terminated that employee for engaging in such activity. In its answer to the complaint, the Respondent denies it violated the Act and further attributes its actions to the Charging Party’s culpable conduct.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by counsel for the General Counsel and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Respondent, an Ohio corporation, with an office and place of business in Canton, Ohio, is a distributor of numismatic and religious collectibles. Annually, the Respondent sells and ships from its Canton facility goods valued in excess of $50,000 directly to points outside the State of Ohio. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

This case involves the Respondent’s alleged treatment of Maggie Engelhart, the Charging Party, after she complained about a security guard allegedly stealing employees’ pizza tip money. Engelhart contends that, as a result of those complaints, the Respondent’s management staff uttered coercive statements compelling her to stop complaining, placed her under surveillance, and denied her request for a leave of absence in June 2005.

The Respondent, a 3-year old company engaged in the distribution of numismatic coins, letters, and other collectibles, employs approximately 300 workers. It coexists at its Canton facility with an affiliated company, Patent Health. The Respondent and Patent Health intermingle operations and personnel. None of the Respondent’s employees are represented by a union.

Engelhart worked for the Respondent as a part-time packer from August 22, 2004, to May 23, 2005. During Engelhart’s employment by the Respondent, she was consistently described as an excellent worker in performance evaluations. While talking was permitted during worktime, Engelhart had a proclivity for loud and crude language that was sometimes offensive to others in her work area. In performance evaluations, Engelhart commented on her penchant for talking, her opinionated nature, the need to “try to have fun at my job a little quieter,” the need to “convince management that I may have a loud mouth but my work is excellent,” and trying “not to irritate others with my bubblyness.” Gail Lynch, her supervisor, recommended that Engelhart do “less talking so more work gets done” and coworkers were “not distracted and doing less work,” noted that Engelhart’s “inappropriate talk in the work place makes some coworkers uncomfortable and distracted from doing their job efficiently,” and commended Engelhart for “doing much better at controlling yourself and your conversations.” Engelhart was also counseled on several occasions, although none of those instances involved conduct or speech outside her work area.[2] Due to her quirky behavior, Engelhart’s work location was moved several times so she could work alone.[3]

The Pizza Tip Controversy

The Respondent’s employees get an unpaid 1/2 hour lunchbreak and have the option of going out to eat or eating lunch in the facility. Employees who eat lunch in the facility frequently have their lunch delivered there. Occasionally, certain employees, including Engelhart, would place a group order for pizza delivery (the pizza group). The pizza group members typically gave their order and money to Ira Hemingway, a security guard employed by United National Security Company, the Respondent’s security contractor. Hemingway volunteered to place the orders, receive them in the reception area, and pay the pizza delivery person. Each employee participating in the pizza group would also include a 50-cent tip for the pizza delivery person.[4]

On one occasion, in late March or early April, the pizza group placed an order with Fox Pizza. The pizza delivery was late, however, causing some of the employees to resume work without having eaten anything. Later that afternoon, Elaine Reitz, an employee who participated in the pizza group that day, visited Fox Pizza. Some employees were angry and wanted a refund. The owner refused a refund and added that his drivers never received tips for deliveries made to the Respondent’s facility. Aware that employees typically provided Hemmingway with tip money, Reitz immediately suspected Hemmingway was keeping the tip money instead of giving it to the pizza delivery person. Reitz called Engelhart at home later that day and told her what she learned at Fox Pizza.[5]

The following day, Reitz met with Mark Craig, the Respondent’s director of human resources, to pass along her discussion with Fox Pizza’s owner. Craig thanked her for sharing the information and promised to look into the situation.[6] After his meeting with Reitz, Craig asked Timothy Mendenhall, the director of fulfillment, to question Hemingway about the pizza tip incident. Mendenhall spoke to Hemingway, who denied the accusation. Hemmingway explained that he was already aware that Reitz and Engelhart accused him of misappropriating the tip money. He also claimed that they were passing around rumors about him to other employees, including one that Hemmingway was having an affair with one of the Respondent’s employees.[7] Hemingway denied the rumors and Mendenhall asked him to stop placing food orders. Hemingway agreed. Neither Craig nor Mendenhall ever contacted Fox Pizza to confirm the allegations.[8] Craig did, however, speak with the Respondent’s receptionist, Jennifer Rodriguez, because food deliveries are placed on her desk. Rodriguez told Craig that she would hear Hemmingway count money out loud and then say that “this is for you.”[9]

Over the course of the next 2 days, Englehart and Reitz discussed the matter with coworkers in the coin vault and, during breaktime, in other parts of the facility. They provided coworkers with Fox Pizza’s telephone number and urged them to call. To the extent that the conversations occurred during worktime, this was not unusual at the Respondent’s facility.[10] However, several coin vault employees, including Sara Zeno, Martha Smith, and Chrissy Snyder, complained to Lynch that the discussion was distracting them from their work. Lynch passed that along to Wendell. Wendell then told Mendenhall. However, rather than speak with Reitz and Engelhart about the matter, Mendenhall told Wendell to have Engelhart and Reitz go meet with Craig.[11]

Craig’s Statements Regarding the Pizza Tip Issue

Mendenhall called Craig and told him he was sending Engelhart and Reitz to meet with him to be counseled regarding the pizza tip incident. Mendenhall told Craig that discussion over the pizza tip incident was disrupting operations.[12] The meeting in Craig’s office lasted approximately 5 minutes. Craig began the meeting by telling Reitz that they previously discussed the issue and he told her that he would handle the situation. Reitz concurred but explained that she had not heard from him. Then Craig looked at Engelhart and asked why she was passing out the telephone number for Fox Pizza. Engelhart began to explain and Craig accused her of having a bad attitude. Craig then issued a verbal warning directing Engelhart and Reitz to stop discussing the pizza tip incident or face termination.[13] Reitz and Engelhart agreed that “there would never be another word said as long as they were working, about the pizza thing.” At that point, the meeting broke up, and Engelhart and Reitz returned to work.[14]

The Respondent’s Surveillance of Engelhart

After the meeting with Craig and Wendell (the Craig meeting), there were no more complaints that Engelhart and Reitz engaged in disruptive behavior.[15] Nevertheless, over a period of 1 to 2 weeks after his meeting with Engelhart and Reitz, Craig visited the warehouse area where the packers worked. Reitz was still working in the coin vault where Lynch also worked. However, Engelhart was stationed at a desk outside the coin vault area. Craig would open the door to the area and stare at Engelhart for about a minute. This contrasted with his practice before the meeting of hardly ever...