Brown's Clothing, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown's Clothing, Inc. and Minnesota Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CL,C Brown's Clothing Inc. and Stanley F. Seviola and Minnesota Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC. Cases 18 ('A 5564 and 18 RD 778 June 5, 1978 DECISION AND ORDER BY (C'HAIRMAN FANNIN(i NI) M MBE RS JlENKINS ANI) Pi Ni I ()o On March 27, 2978, Administrative Law Judge Farldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional ILabor Relations Board has delegated its au- thority in this proceeding to a three-member panel. IThe Board has considered the record and the at- tached decision in light of the exceptions and brief and has decided to affirm the rulings, findings.l and conclusions of the Administrative Law Judge and to adopt her recommended Order. )R I)[.R 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. Brown's Clothing. Inc., VMinneapolis, Minnesota, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. Respollldelit hia s exepted to (ertain credibilhi findings ilmade hb the \,iiiiiistrtitl I.aw . ld c iidh Is he Hoaitds established polhLs niot to ivcrriul il ii\diiillsiratlise I.aw Judge's lesoluti un s with respect to credibilitr unless til}I ticlr iciu ride l iaice lf ill of the relevint evidence o, nivinces us that the fc- ,lt on, are incorrect Srtandardi i)r Hal l P-i'ri,iix. In, 91 Ni RiB 544 I tl)ll etlll IS 12dI 1162 (('A 3 19 51). We haie carefuill examinlted Ihe id id firnld li h:lsis for reersiig het finldings Whli he hlCees ithlli his II cleigticS thiat the dischalrges of Nil~d. alnd \ litdla \icuse': s i/ . liolated Sc, 8(a)1l) and ( I iof the Act and irilil- 1,'d ith the Cin losers frer hore In the lee free iin thus reqtirinre ;1 lne I Mlem 1her ICllkiis M oulld llnot find Aleksaindrai \VroIsiewitL eligible t ,, t i teie C tilo hb.cause o, her staltlls is a ; so cial securi inli tiint i }ls statctment of posiiion ill S t:,w t; i I'm li/iu' (o, n, /, 214 NI RH iX ih fn i 1974). and i n l'hr i Phi/i/p In . 17X Ni RB 4 342. 4. fin i 1'U ,l , i\c diJl Nl fC'I lenkin's l d11i riot order her bhlloi to he op[elcd rmid olintedl I' iS FURTHER ORDERED that Case 18 RD 778 be severed and remanded to the Regional Director for Region 18 to open and count the overruled determi- native challenged ballots, and thereafter to issue a revised tally of ballots. Should said tally of ballots indicate that the Union was designated by a majori- ty, he shall issue a certification of representative. Should the revised tally of ballots disclose that the Petitioner has not been designated by a majority, the election conducted on October 7. 1977. shall be set aside and said Regional Director shall conduct a re- run election at such time as he deems the circum- stances permit a free choice on the issue of represen- tation. DECISION STATEMENT OF THE CASE FARI DEAN V S ROBBINS. Administrative Law Judge: This case was heard before me in Minneapolis, Minnesota, on January 16, 1978. The charge in Case 18-CA 5564 was filed by Minnesota Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC, herein called the Union, and served on Brown's Clothing, Inc., herein called Respondent, on October 7, 1977. The complaint, which issued on November 28, 1977, alleges that Respon- dent violated Section 8(a)(l) and (3) of the National Labor Relations Act, as amended. The petition in Case 18-RD-778 was filed on January 4, 1977. Pursuant to a Regional Director's Decision and Di- rection of Election, which issued on August 26, 1977, an election was conducted on October 7, 1977, in a unit of all full-time and regular part-time employees employed in the alterations department at Respondent's Minneapolis, Min- nesota, facility. The election tally was one vote for and two against the Union, with two challenged ballots which are sufficient in number to affect the results of the election. On October 7 the Union filed timely objections to con- duct affecting the results of the election, copies of which werc duly served on the other parties. The Union's objec- tions allege that Respondent discharged employees Alek- sandra and Nilda Wolosiewicz, in violation of Section 81a)(3) of the Act, on the evening before the election in order to prevent them from voting in the election. The bal- lots of Nilda and Aleksandra Wolosiewicz were challenged by the Employer on the grounds that they were terminated before the election. These discharges are the sole issue in Case 18-CA-5564. On November 30, 1977, the Regional Director issued a Supplemental Decision and Order con- solidating Case 18-RD 778 with Case 18 CA--5564 for the purposes of hearing, ruling, and decision by an Adminis- trative Law Judge. A posttrial brief was filed by the Gener- al Counsel. Upon the entire record, including my observation of the witnesses and after due consideration of the brief filed by the General Counsel, I make the following: 236 NI.RB No. 80 71h BROWN'S CLOTHING. INC. FINDINGS OF FACtS I COMMER(CE Respondent, a Minnesota corporation with its principal office and place of business in Minneapolis, Minnesota. is engaged in the retail sale of men's and boys' clothing and wearing apparel. During the calendar year 1976. which pe- riod is representative of its operations during all times ma- terial herein, Respondent, in the course and conduct of said business operations, received gross revenues in excess of $500,000 and purchased and caused to be transported and delivered to its Minneapolis, Minnesota, store goods and materials valued in excess of $50,000 directly from points located outside the State of Minnesota. The complaint alleges, Respondent admits, and I find that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11 iABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. Ii. THE ALLE(;FD UNFAIR LABOR PR4('1('[-S A. Facts Respondent and the Union have had successive collec- tive-bargaining agreements covering Respondent's altera- tion department employees for at least 12 years. The last such contract, which was for a 3-year term, expired on December 31, 1976. At that time there were five employees in the alterations department - presser Stanley Seviola and seamstresses Jennie Balick, Ethel Doll, Nilda Wolosiewicz. and Aleksandra Wolosiewicz. Only Balick and Aleksandra were members of the Union. Seviola filed a decertification petition on January 4. 1977.1 Pursuant to the Regional Director's direction of election, the election was scheduled for September 23. On September 19, Nilda was admitted to the hospital and her baby was delivered by Caesarean section on September 20. She was discharged from the hospital on September 26. At some time prior to September 23, the Union requested that the election be postponed to afford Nilda an opportunity to vote. Respondent agreed and the election was resched- uled to October 7. Aleksandra has worked for Respondent since 1972 and has been a member of the Union since sometime in 1972.2 She is 65 years old and began receiving social security ben- All dates herein will hbe 1977 unles. otheruise indcllted :Lorraine Pettils. head bookkeeper. teslified that. in Apll. Alelklandl.d asked her to cease her dues checkoff I nlon Business Reprcsentari\e Rich- ard t1onetschlager testified that. in April. Respo ndent noti ied the I Ilil that it would cease dues checkoff for Aleksa ndra hecaul e c the,. did rli, i, .c an authorization card for her ltonetschlaiger sent Respondent a cop\ of IlhI authorization card but did not pursue the matter because of thc itepr cill.i- tion proceeding. Hie further testified Ihatl ilek- ndr.a remalinedl .i lcicbel l good standing. efits in 1975. At that time she made a arrangement with her supervisor, Ben Rosenswag. that she would work each year until her total wages reached $3.000. the maximum allowed without affecting her social security benefits. At that point she would stop work for the remainder of the year and then return to work the following sear. This arrangement was followed in 1975 and also in 1976 after Rosenswag left Respondent's employ. In 1976 Aleksandra worked excess hours under an arrangement whereby she was paid for those hours in January 1976. On October 4, Lorraine Pettis. Respondent's vice presi- dent and head bookkeeper.1 telephoned Aleksandra and asked her to come to work the next day.4 Aleksandra said she could come to work but first she had to know exactly how much she had earned in 1977. Aleksandra did come to work on October 5. At or about 10 a.m. Pettis gave Alek- sandra a slip stating that she had earned $3,006.75. When Aleksandra saw the amount, she told Pettis that she want- ed to leave then, there was $6.75 too much on the slip, and she had already worked 2 days during the current pay pe- riod. She told Pettis she wanted to go home and she would see her in 1978. Pettis asked Aleksandra to see her in the office when she was reads to leave. At I p.m. 5 Aleksandra went into the office to se-e Pettis but she was out to lunch. Pettis admits that, when Aleksandra said she could not work anymore, she knew that Aleksandra meant she did not want to earn in excess of $3,000 because it would affect her social security benefits. Pettis also admits that she did not in any' way indicate to Aleksandra that there would be any adverse consequences if she failed to continue to work throughout 1977. According to her, when Aleksandra said she could not work anymore, she told Aleksandra "Well, that is up to y'ou." Aleksandra asked if her pay could be held until 1978 and Petti'. said she did not know. Although she denied it at the hearing. Pettis' prehearing affidavit states "on October 5th. I informed Aleksandra that she was at the level of wages where she might want to quit for the test of the Near." Nilda was first employed by Respondent in October 1976. Iter last day of work was September 14. She arranged with her foreman, Bruce Richardson, an admitted supervis- or. to take a leae of absence. According to her undenied testimony. w"hich I credit, she told Richardson that, in ad- dition to her confinement, she had to move and find a babD sitter and that she expected to return to work the first " or second week in November. Richardson said O.K.. that Nilda had to take care of herself. Richrdson did not testifs and there is no contention that he did not have au- thoriti to grant Nilda the leave of absence. According to Nilda's undenied testimony, on September 27. Seviola telephoned her and asked her to come to work. She replied. "Are you craz\'?"" Seviola said he needed her. that Richardson was out ill. He then asked when she would 'Shet' 1s ltl idnll tCd iipellWo-r 4Ick ,tandr.i had uorked on October h bu had not iorked on Ocohbr 4 leks.,indlr.i tletf lcd 1h lihct il,, ,,.ALked ,I I put on October ' Ihe official transcript itl p. L In 2s. incorretls re.lds "fifth ucck IIh transcript is herebh corrected to ch(ine "fifth" to "first Shc ,,tis referrine t,, the ft t th.,at lc ]id inl/ been relc.eaed frion the h it. te Jd hc 'i r bfr 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to work. Nilda said she was not sure when she would return, that she had to move and find a baby sitter but she thought it would be the second or third week in November. Pettis testified that, on October 6, Seviola told her that he had telephoned Nilda to see if she was going to come in and vote and that she told him she did not know whether she was going to return to work. He told her "we need you" and she replied, "Maybe I come back in November, maybe not." Although Seviola was present at the hearing, he did not testify. Pettis testified that she made no attempt to contact Nil- da to verify this information. She made an unsuccessful attempt to reach Eugene Brown, Respondent's president, by phone. She then telephoned Lloyd MacAloon. a consul- tant in labor relations whom Brown had instructed her to telephone if anything came up regarding the representation proceeding. She reported to him her conversation with Sev- iola. She further told him that, in response to Aleksandra's request, she had given Aleksandra a slip indicating the to- tal wages she had earned in 1977 and Aleksandra said she could not work anymore. MacAloon then dictated to her the following telegrams which she sent that day. The telegram to Aleksandra stat- ed: "Your refusal to continue at work established you have voluntarily terminated your employment relationship with Brown Clothing Company." The telegram to Nilda. sent to both her old ` and her new address, stated: "Your declared intent not to return to employment establishes that you voluntarily terminated your employment with Brown Clothing Company as of this date." By letter dated October 20, MacAloon made the follow- ing statement of Respondent's position to the Board's Re- gional Office with reference to Case 18 CA-5564: Replying to your inquiry of October 1, 1977 in the above subject matter, I advise that: (a) The two employees. Nilda and Alexandra [sicj Wolosiewizz, [sic] were not terminated because of Union affiliations or activities (b) The two employees. Nilda and Alexandra [sic] were terminated in order that they become ineligible to vote in the decertification election, NLRB Case No. 18 RD 778. (c) The two employees, Nilda and Alexandra [sic] Wolosiewizz, [sic] were terminated after they advised management of their intent not to return to employ- ment but that they did intend to participate in the decertification election. (d) The action of management was necessary in or- der to assure a representation election on petition filed by employees. There were only five (5) employees in the unit. The declared intent of two employees not to continue to work for Brown Clothing Company but to participate in a determination of a bargaining agent would certainly not serve the purpose of the rights and privilieges of employees to determine the question of representation. Nilda Is lckslandra's niece hy marriage and until Oc(tober she liied at Aleksandra's residence. B. Conclusions Respondent contends that Aleksandra and Nilda quit. I disagree. The record clearly establishes, and I find, that both Nilda and Aleksandra were off work in accordance with an arrangement which each of them had with Respon- dent and that they both intended, and Respondent expect- ed them, to return to work in November and January, re- spectively. I further find, based on Nilda's uncontradicted testimony which I credit,. that Nilda did not tell Seviola that she did not intend to return to work or that she was considering not returning to work for Respondent. In all the circumstances, I conclude that Respondent seized upon an excuse to rid the unit of a known union supporter and her niece, and to deplete the size of the bar- gaining unit in the expectation that, of the three remaining unit employees, two would probably vote against the Union--the petitioner, Seviola, and Doll, who Respondent knew had not been a member of the Union. Accordingly, I find that Respondent discharged Nilda Wolosiewicz and Aleksandra Wolosiewicz to prevent them from voting in the Board-conducted election on October 7 and thereby violated Section 8(a)(1) and (3) of the Act. East Coast Equipment Corporation and Stero Sales, Inc., 221 NLRB 618 (1975). IV ItHF REPRESENTATION PROCEEDINGS Since I have found that Nilda Wolosiewicz and Aleksan- dra Wolosiewicz were discharged in violation of Section 8(a)( ) and (3) of the Act, they are discriminatees eligible to vote in the election. Accordingly, I shall recommend that the Regional Director be directed to open and count the challenged ballots and issue a revised tally of ballots. I further find that such conduct also interfered with the employees' exercise of a free and untrammeled choice in the election held on October 7. Accordingly, I shall recom- mend that the Union be certified if the revised tally of ballots shows that it has received a majority of the valid votes counted. However, in the event that the Union has not received a majority, I shall recommend that the said election be set aside and that a new election be held at such time as the Regional Director deems appropriate. CONCLUSIONS OF LAW I. Respondent, Brown's Clothing, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Nilda Wolosiewicz and Aleksandra Wolosiewicz to prevent them from participating in a Board-conducted election, Respondent has committed un- fair labor practices in violation of Section 8(a)(l) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Se'iolla was present at the hearing but did not testify. 718 BROWN'S CLOTHING, INC THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discharged Nilda Wolo- siewicz and Aleksandra Wolosiewicz in violation of Sec- tion 8(a)(1) and (3) of the Act, it is recommended that Respondent offer each of them immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position without prejudice to her seniority or other rights and privileges, and make each of them whole for any loss of pay suffered by reason of the discrimination against her with interest thereon to be com- puted in the manner prescribed in F. W. Woolw/orth Colm- pany, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).10 Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER The Respondent, Brown's Clothing, Inc., Minneapolis. Minnesota, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against em- ployees to prevent them from being eligible to vote in a Board-conducted election. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Nilda Wolosiewicz and Aleksandra Wolosiew- icz immediate and full reinstatement to their former posi- tions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Nilda Wolosiewicz whole for any loss of pas the)y may have suffered by reason of the discrimination against them in the manner set forth in the section herein entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents. for examination and copying, all pay- roll records and reports and all other records required to ascertain the amounts, if any, of any backpay due under the terms of this recommended Order. (d) Post at its place of business in Minneapolis, Minne- sota, copies of the attached notice marked "Appendix." `' Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by its au- thorized representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 18, in writ- ing. within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 11 IS ALSO RE(OMMFeDEI) that the challenges to the ballots of Nilda Wolosiewicz and Aleksandra Wolosiewicz in the election held on October 7. 1977, in Case 18-RD-778, be overruled and that the Regional Director for Region 18 be directed to open and count said challenged ballots and is- sue a revised tally of ballots. 11 Is Ft RIHER RECOMMENI)END that the Union be certified if the revised tally of ballots shows that it has received a majority of the valid votes counted. However, in the event that the Union has not received such a majority, it is rec- ommended that the Union's objections to the election be sustained and that the election held on October 7. 1977, be set aside and that a second election be held at such time and manner as the Regional Director deems appropriate. "' See. generall!. lis Plumb,,ing d Heauin (Co. 138 Nl.RB 716 (1962) l In Ihe event no exceptions are filed as provided bh Sec 10246 of the Rules iand Regulations of the National l.ahor Relations Board. the findings. conclusions. and recommended Order herein shall. as provided in Sec 102.48 of the Rules and Regulations. be adopted h5 the Board and b ecome Its findings. conclusions, and Order. and all objections thereto shall he deemed waived for all purposes. t: In Ihe event that this Order is enforced hs a Judgment of a I nited Stsates ( turt of Appe;ls. the twords in the notice reading "Posled hs Order of the National I ahlar Relations Board" shall read "Posted Pursuant to a Judgment if the t niatd States Court oif Appeals Enforcing an Order of the National IL.abor Rela.tions Boa.ird APPENDIX NOTICE TO EMPIOYFES POSTED B'Y ORDER OF THE NATIONAL LABOR RFIATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act. and has ordered us to post this notice and we intend to carr, out the order of the Board. Ihe Act gives all employees these rights: To engage in self-organization To form. join. or help unions To bargain as a group through a representative of their own choosing lo act together for collective bargaining or other mutual aid or protection [o refuse to do any or all of these things. Wt 5n.l 'Nso do anything that interferes with. re- strains. or coerces you with respect to these rights WF VInt 'o N discharge or otherwise discriminate against employees to prevent them from voting in a Board-conducted election. WF \Vtl Nsot in any, other manner punish employees for exercising the rights guaranteed them by Section 7 of the National Labor Relations Act. WE wtlt offer Nilda Wolosiewicz and Aleksandra 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wolosiewicz their jobs back and WE WILL reimburse each of them for any loss of pay she may have suf- fered because we discharged her, together with interest as provided by the Board's Order. BROWN's CLOTHING, INC. 720