Local 1550, Retail Clerks

LOCAL 1550, RETAIL CLERKS Local 1550, Retail Clerks International Association, AFL-CIO (Sandsburg Supermarket, et aL) and Helen Stavrides. Case 13-CB-4040 June 6, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 27, 1972, Trial Examiner Lowell Goerlich issued the attached Decision in this pro- ceeding. Thereafter, the Charging Party filed excep- tions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The Charging Party has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Trial Examiner : A charge filed by Helen Stavrides on October 29, 1971, was served by registered mail on Local 1550, Retail Clerks International Association, AFL-CIO, herein referred to as the Respon- dent or Local 1550, on October 30, 1971. A complaint and notice of hearing was issued on January 14, 1972, wherein it was alleged that the Respondent had violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended, herein referred to as the Act, by dismissing Helen Stavrides from her position as a member of the executive board of Local 1550 because Helen Stavrides had filed charges against Local 1550 with the National Labor Relations Board, herein referred to as the Board. I Through inadvertence the answer was not included in the formal documents General Counsel's motion to admit the answer as G.C. Exh. 1(I) 305 The Respondent filed a timely answer I denying that it had engaged in or was engaging in the unfair labor practices alleged. The case came on for hearing on February 1 and 2, 1972, at Chicago, Illinois. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered by the Trial Examiner. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR. 1. JURISDICTION As is admitted by Local 1550, Local 1550 is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. Local 1550's jurisdic- tion embraces the city of Chicago, Illinois, where it is the recognized collective-bargaining agent of employees who work in retail supermarkets, drugstores, and bakeries. Local 1550 has about 10,000 members . Among the retail stores with which Local 1550 has a bargaining relationship is Burny Brothers, Inc., located in Chicago , Illinois. Burny Brothers; Inc.,. is an Illinois corporation with its home office and principal place of business in Chicago , Illinois. It is engaged in the business of baking and retail selling of bread, rolls, cakes, pies, and other bread and pastry products . During the past calendar year, a representative year, Burny Brothers, Inc., sold goods in excess of $500,000; during this same calendar year it purchased goods having a value in excess of $50 ,000 and caused these goods to be shipped from their sources outside of the State of Illinois to Burny Brothers , Inc., facilities in Chicago, Illinois. Burny Brothers, Inc., is and has been at all times relevant to this proceeding an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Trial Examiner finds that the National Labor Relations Board has jurisdiction over this action. II. THE UNFAIR LABOR PRACTICES A. Statement of Pertinent Facts Helen Stavrides was an elected member of the Local 1550's executive board. Her 3-year term of office expired on December 31. Prior to her last term of office she had been a member of the executive board for about 10 years. She had been employed by the Kroger Company as a cashier in Chicago, Illinois, until January 18, 1971, at which time the Kroger Company closed its retail stores in Chicago and she, together with other employees , ceased employment with such company. She remained unem- ployed until August 27, 1971, at which time she was employed by the Continental Bank as a cashier in its is granted 197 NLRB No. 65 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cafeteria. She was removed from the executive board on July 15, 1971. The constitution and bylaws of the Local 1550 provide that members of the executive board lose eligibility for continued membership on the executive board if they cease working for employers within the jurisdiction of the local union. A grace period of from 60 to 90 days is generally allowed a member before removal action is initiated. On June 14, 1971, Stavrides and three other members of the executive board, Dorothy Thomsic, Edel Valentine, and Verneta Miller, were ineligible for continued membership on the executive board because they were no longer working within the jurisdiction of Local 1550. Dorothy Thomsic had been employed by Kroger and had lost her job about the same time as Stavrides. On June 14, 1971, Morrie D. Wishnick, secretary-treasurer of Local 1550, following past practice,2 asked each of the four members of the executive board to resign. Thomsic, Valentine, and Miller resigned. Stavrides refused to resign, whereupon Wishnick sent her a letter dated July 15, 1971, removing her from the executive board. The resignations of Thomsic, Valentine, and Miller were accepted by the executive board on August 9, 1971. At the same meeting a motion was approved "backing Brother Wishnick's action" in respect to Stavrides. After Stavrides ceased employment with Kroger she actively sought work. She was aided in this endeavor by Local 1550 Business Agent Robert J. Flosi and Local 1550 Business Representative Leonard Daniel Goduto. Prior to June 14, 1971, Flosi referred Stavrides to Mayflower and Dominick's who were employers within Local 1550's jurisdiction. Stavrides told Most that "she didn't want to work for Mayflower." Prior to June 14, 1971, Goduto offered Stavrides a job "in drugs" at Stineway, an employer within the Union's jurisdiction. Goduto said, "The pay is not like you had in the food store, it's a dollar ninety five, and this would carry you over until something breaks in foods." Stavrides did not take the job.3 Also prior to June 14, 1971, Jerry Gesiakowski and Ron F. Leus- mann, business representatives of Local 1550, introduced Stavndes to Mel Potash, owner of Sandburg Foods. During the period Stavrides was seeking employment, jobs were scarce in Local 1550's jurisdiction. During the same period Stavndes filed eight4 unfan labor practice charges, three against Local 1550 and five against employers. The Regional Director did not issue a complaint in any case except the one which is the subject 2 Bob Johnson, Nellie Juergensen, and Paul Hammer, members of the executive board who were not "active in the working field", were asked to resign in 1964 Their resignations were approved by the executive board on April 21, 1964 3 Stavrides first testified, "I told him [Goduto] I don't work in a drug store " Later she testified, "Q You now remember-you you now remember that you had no conversation with him [Goduto ] in which he offered you a job as a-in a drug store9 A Right " 4 Stavrides had also filed an unfair labor practice charge against Local 1550 on June 16, 1969, and an unfair labor practice charge against the Kroger Company on July 9, 1969 5 Stavrides testified, "He [Wishnick ] asked me to resign from the Board, with all the trouble I caused with investigation and with the National Labor Relations Board 'it will be best for everyone concerned with the of this proceeding. As noted, on June 14, 1971, Wishnick asked Stavn des to resign from the executive board. As a precaution against possible misquoting Wishnick made the request in the presence of executive board members Agnes Sylvester, Ardelle Bell, and Charlotte Reberger. Wishnick requested Stavndes' resignation, explaining that under the bylaws she could no longer serve on the executive board if she no longer worked as a retail clerk in a union store 5 Stavrides asked for some time to give the matter thought. On June 20, 1971, Stavndes notified Wishnick that she refused to resign. B. Conclusions and Reasons Therefor The General Counsel claims that the motive of the Respondent in removing Stavrides from the executive board stemmed from her having filed charges against the Union with the Board. If such contention is valid, General Counsel has made out a violation of the Act. N.L.R.B. v. Industrial Union of Marine & Shipbuilding Workers of America, AFL-CIO, 391 U.S. 418; International Union of Operating Engineers, Local No 825, AFL-CIO (Domenic Tarantino), 173 NLRB 955, affd. 420 F.2d 961 (C.A. 3); Local 294 International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (August Bohl Contracting Co., Inc.), 193 NLRB No. 138. Not only is credibility not with the General Counsel's witness Stavrides on the crucial issue as to whether Wishnick mentioned the trouble that Stavrides had caused with the National Labor Relations Board investigation, but the following factors negative discriminatory motive on the part of the Respondent: (1) In respect to the request for Stavndes' resignation as an executive board member, the Respondent followed past practice; (2) representatives of Local 1550 sought employment for Starvides with employ- ers within the Union's jurisdiction in which, had they been successful, Stavndes would have continued as an executive board member; (3) had Stavndes accepted the Union's offer "in drugs" at Stineway she would have remained an executive board member; and (4) executive board mem- bers Stavrides, Thomasic, Valentine, and Miller, whose cases were the same, received equal treatment from the Respondent. "Discrimination consists of treating like cases differently." Frosty Morn Meats, Inc. v. N.LRB., 296 F.2d 617, 621 (C.A. 5). new bylaws we have you have no choice . you will have to resign, that the Board will okay it and the International President sent a letter, said it was all right, so the Board will vote on it 'He [Wishnick ] said the new bylaws the International President okayed, that anyone out of work 90 days or more can not be an Executive Board member" Wishnick indicated that Stavndes came within that class Wishnick, Bell, and Sylvester denied that Wishnick had mentioned the trouble Stavndes had caused with the National Labor Relations Board investigation Their denials are credited Starvides by temperament and demeanor impressed the Trial Examiner as an individual whose chimerical injustices conditioned her testimony to the point where, perhaps, she believed her own allegations On the other hand the stake of Bell and Sylvester in this proceeding was minimal, they impressed the Trial Examiner that they were telling the truth LOCAL 1550, RETAIL CLERKS 307 Accordingly the Trial Examiner finds that Local 1550 has not violated the Act as charged in the complaint of the General Counsel and recommends that the Board issue the following: ORDER It is hereby ordered that the complaint herein be, and it hereby is , dismissed in its entirety.