Crawford Clothes, Inc.

CRAWFORD CLOTHES, INC. 9 Crawford Clothes, Inc. and John W. Lindsay Harlem Labor Union, Inc. and its Agent William E. Ferman and John W. Lindsay. Cases Nos. 2-CA-5936 and 2-CB-2247. March 3, 1959 DECISION AND ORDER On December 24,1958, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceedings, finding that the Respondents had not engaged in any unfair labor practices and recommending that the consolidated complaints be dismissed in their entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Inter- mediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in these proceedings, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaints.] 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Bean, Jenkins, and Fanning]. INTERMEDIATE REPORT STATEMENT OF THE CASE Charges having been duly filed and served in each of the above-entitled cases, an order consolidating said cases, a complaint and notice of hearing thereon having been issued and served by the General Counsel of the National Labor Relations Board, and answers having been filed by each of the above-named Respondents, a heating involving allegations of unfair labor practices in violation of Section 8(a)(1) and (3) and 8(b) (1)(A) and (2) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was held in New York, New York, on November 12 and 13, 1958, before the duly designated Trial Examiner. At the hearing all parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings of fact and conclusions of law. Arguments were waived. Briefs from all parties have been received and considered. On December 3, 1958, there was received from counsel for the Respondent Com- pany a motion, with indication that copies had been served upon the other parties, to correct certain minor typographical errors in the official transcript. No objection having been received, said motion is granted and is hereby made a part of the record. At the opening of the hearing counsel for the Respondent Union and its agent, William E. Ferman, moved that the complaint have stricken from it the name of Ferman as a Respondent, since this individual had died. Without objection this motion was granted. 123 NLRB No. 8. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY Crawford Clothes, Inc., is a New York corporation with principal office and place of business in Long Island City, New York, New York. It operates various plants, retail stores, places of business , warehouses , and other facilities in the States of New York and New Jersey, including two retail stores located at 115 West 125th Street and 201 West 125th Street , New York City . It is engaged in the manufacture, sale, and distribution of clothing, wearing apparel , and related products. Only the two stores on 125th Street cited above are involved in these proceedings. During the year before issuance of the complaint Crawford caused to be purchased, transferred, and delivered to its Long Island plant goods and materials valued at more than $ 1,000,000, of which total materials valued at more than $500,000 were transported to this plant in interstate commerce, directly from States other than the State of New York. During the same period Crawford 's gross volume of business in its retail stores exceeded $500,000. The Respondent Crawford is engaged in commerce within the meaning of the Act. 11. THE LABOR ORGANIZATION INVOLVED Harlem Labor Union, Inc., is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The one major issue in this case arises from the discharge by Crawford of a salesman, John W. Lindsay, on April 26 , 1958. The questions are whether or not the preponderance of evidence supports either of General Counsel 's conjunctive contentions that the Union caused the Company to fire Lindsay , and that the Company did fire him, in violation of Section 8(a) (3) of the Act: (1) "because said employee was not a member of the Union ," and (2 ) "because Crawford wished to furnish employment for a member of the Union." As to certain basic, relevant facts there is no dispute : ( 1) Lindsay, employed as a salesman at one or the other of Crawford's two 125th Street stores , referred to above, continuously since 1947, was fired without previous notice on April 26, 1958; ( 2) another salesman, Curley Wynters, also employed at one or the other of the same two stores since 1946 , except for an occasional economic layoff, was not fired on April 26, and was still employed at the time of the hearing ; ( 3) Lindsay had been a member of the Respondent Union from early in his employment until either 1954 or 1955, but had not been a member for some years at the time of his discharge in 1958; ( 4) Wynters since his employment in 1946 has been and has continued to be a member of the Union ; ( 5) there existed at the time of Lindsay's discharge no contractual agreement between the Respondents requiring member- ship in the Union as a condition of employment ; ( 6) neither Respondent ever told Lindsay ( according to his own testimony ) that he must be a union member to retain his employment; (7) although he had not been a union member since 1954 or 1955 Lindsay had never been laid off for any reason; and (8 ) although he had been a union member during the same period , Wynters had been laid off for economic reasons. The foregoing facts appear to be dubious support for General Counsel's claim of illegal discrimination against Lindsay. Other matters , concerning which testimony is in dispute, as well as the Company's claims and supporting testimony as to its reasons for Lindsay 's discharge, will be set out in the next section. A. Lindsay 's discharge The record contains no evidence of probative weight to support a finding that the Union, or any of its agents, at any time or in any way ever communicated any desire to the Respondent Company that it dismiss Lindsay, for any reason. Nor is there any credible evidence from which it might reasonably be inferred that the Union had such desire. Lindsay's testimony, quoted, is unequivocal: Q. You never had any conversations with Mr. Ferman or anyone connected with the union concerning your job at Crawfords, did you? A. No. CRAWFORD CLOTHES, INC. 11 Q. None whatsoever? A. None. General Counsel placed in evidence an affidavit executed by Ferman in June 1958, for a Board agent, which in part states: I did not tell Crawford to discharge Lindsay and have had no conversations with the Company in reference to Lindsay. This sworn statement is corroborated by the Respondent Company's personnel director, David Rugoff, who flatly denied that he had ever met Ferman or had ever had any communication or request from the Union with respect to Lindsay. The only testimony from which, if credited, it might be inferred that Ferman or the Union was instrumental in causing Lindsay's discharge is that of the former employee himself . It is his claim that after he had been fired by his store manager upon orders from Rugoff , he went to see the personnel manager to find out why. His testimony as to this interview is as follows: He (Rugoff) said; "The first thing happened , I got a call from the Harlem Labor Union , from this Mr. Ferman, and he started chewing my head off and I didn't know anything about him . The next thing I know I was to have a luncheon date with Mr. Ferman." Q. A luncheon date? A. Yes. "Then that was off, and then the next thing I know the Harlem Labor Union and the company lawyers was to have the meeting." Q. Did he say anything else? A. Then he said , "They would have a meeting." So I asked him, "What was it about?" He said, "The decision was that we had looked and tried to find out whether you belonged to any Union. We couldn't find any union that you belonged to. Being that Curley was a union member, therefore we would have to let you go." I asked him , "How is it if Curley is a union member, why would I have to go ? I have been there all this time without being a member. Why didn't they fire me before?" He said, "I don't know . All I do is take orders. My orders was to let you go and Curley was to take your place," and that's as far as he went. As a witness Rugoff denied Lindsay's version of this interview , and on the con- trary claimed that Lindsay insistently accused him of firing him because he was not a union member, but that he as insistently denied it. Having observed both witnesses as they testified , and because of other circum- stances as to which there is no dispute , the Trial Examiner cannot accept Lindsay's account of this interview as credible. It strains credulity to believe that the personnel manager of this large concern would have told an employee, "All I do is take orders." And one would have to infer , in the absence of any other evidence and of any con- tractual relationship, that in some fashion the Harlem Labor Union, Inc., exercised control over Crawford's hiring policies and practices. In short, the Trial Examiner considers the credible evidence to be insufficient to support the allegation that Lindsay was discharged because he was not a union member. Turning to the conjunctive or alternate contention : that he was discharged "because Crawford wished to furnish employment for a member of the Union." Basic facts as to which there is no dispute provide scant foundation for such a finding. Curley Wynters (the member of the Union involved in the contention) had been employed by Crawford over a longer period than Lindsay, and already had "employment " at the time Lindsay was let go. This is not a case of there being a single job, from which one employee was fired in order to give employment to another applicant. The situation in its simplicity was merely that of two salesmen being employed over a period of many years , and on April 26, 1958, one of them was let go. There is no evidence that anyone has been hired to take the place of Lindsay. The fact that Wynters, since Lindsay's discharge, has received an increase in pay equal to that which Lindsay was getting does not alter the employment status or the employment issue. Rugoff's unrefuted testimony that for economic reasons he , and he alone, decided to reduce the salesman force at these two stores may not be casually dismissed as unworthy of belief. That it has as a fact been reduced is not challenged by General Counsel . Rugoff's further claim that he chose to let Lindsay go on the basis of relative ability and seniority involves two factors: judgment and a demon- strable fact. As to the fact of seniority, there is no dispute that Lindsay had less 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than Wynters. As to the matter of ability, the Trial Examiner is not of the opinion that General Counsel established that Rugoff's decision to keep Wynters and let Lindsay go was so arbitrary and capricious as to warrant the inference that the real reason must have been his preference to keep a union member in employment. In summary, the Trial Examiner concludes and finds that the preponderance of credible evidence does not sustain the allegations of the complaint as to the dis- charge of John W. Lindsay.' Upon the basis of the foregoing findings and conclusions and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Harlem Labor Union, Inc., is a labor organization within the meaning of Section 2 (5) of the Act. 2. Crawford Clothes, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Crawford Clothes, Inc., has not engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 4. Harlem Labor Union, Inc., has not engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) and (2 ) of the Act. [Recommendations omitted from publication.] 'The Trial Examiner does not ignore certain statements in Ferman's affidavit relative to his admission that he asked the Company to give Wynters "full time" work. But from this mere fact it does not without doubt follow that the Company yielded to the request by discharging Lindsay. The affidavit fails to fix the time of such request with accuracy, and apparently places the first request as many months before Lindsay was laid off. From Wynters' testimony it appears that he had been working full time for a month or more before the discharge. In any event, even if it might be reasonably inferred that Wynters benefited because of Ferman's intercession for him, the Trial Examiner does not believe that this fact would support the claim that Lindsay was deprived of alt employment because he was not a union member and Wynters was. Morrison-Knudsen Company, Inc., Walsh Construction Com- pany, and Perini-Quebec, Inc., d/b/a Robinson Bay Lock Constructors, A Joint Venture and Morrison-Knudsen Com- pany, Inc., B. Perini & Sons, Inc., Walsh Construction Com- pany and Utah Construction Company, A Joint Venture and Morrison-Knudsen Company, Inc. and Selby Drilling Corp. and Herald H. Blum. Cases Nos. 3-CA-972, 3-CA-973,. 3-CA-979, and 3-CA-994. March 4, 1959 DECISION AND ORDER On March 6,1957, Trial Examiner George Downing issued his Inter- mediate Report in the above-entitled proceedings, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also found that Respondents had not engaged in certain other unfair labor practices alleged in the com- plaint, recommended dismissal of those allegations, and further reconi- 123 NLRB No. 12.