Carleton-Stuart Corp.

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carleton-Stuart Corporation and Office and Profes- sional Employees Union, Local 153, AFL-CIO. Case 29-CA-2421 June 23, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 14, 1972, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, and a supporting brief, and the Respondent filed a brief in answer to the General Counsel's exceptions. 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 be, and it hereby is, dismissed. i The General Counsel 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 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 PAUL E. WEIL, Trial Examiner: On June 10, 1971, Office and Professional Employees' Union, Local 153, AFL-CIO, hereinafter called the Union, filed a charge' with the Regional Director for Region 29 of the National Labor Relations Board, hereinafter called the Board, alleging that Carleton-Stuart Corporation, hereinafter called Respon- dent, violated the Act by discharging an employee, George Gesualdo, because of his umon activity. On August 17, 1971, the Regional Director, on behalf of the General Counsel of the Board, issued a complaint and notice of hearing alleging that Respondent violated the Act by the discharge of Gesualdo, and by acts of interrogation, threats of reprisal, and surveillance of the employees engaged in union and concerted activities. By its duly filed answer, Respondent denied the commission of any unfair labor practices. The matter thereupon came on for hearing before me on November 8 and 9, 1971. The hearing was interrupted on November 9 by a strike of court reporters and resumed after the strike on January 17, on which day it was completed. All parties were present at the hearing and had an opportunity to call and interrogate witnesses, cross- examine them, adduce relevant and material evidence, argue orally on the record, and file briefs. Briefs have been received from Respondent and the General Counsel. Upon the entire record, from my observation of the witnesses and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Respondent is a New York corporation selling and distributing air-conditioning and heating equipment and related products at wholesale in Queens County, New York. Respondent annually purchases and causes to be delivered to its plant goods and materials valued in excess of $50,000 transported in interstate commerce from States of the United States other than the State of New York. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The alleged discriminatee, George Gesualdo, was a sales order clerk in Respondent's employ, one of five persons whose function was to receive orders written by the salesmen of Respondent, arrange delivery dates, procure the merchandise, arrange for it to be delivered or picked up, and, in general, do the paper work connected with the ultimate sale of the merchandise. Respondent had two main lines of merchandise, that manufactured by Kelvina- tor and that manufactured by Carrier. The Carrier line was somewhat the larger and the three of the five sales order clerks specialized in Kelvinator products. They were supervised immediately by Joseph Trost, who, aside from his supervisory duties, also functioned as a sales order clerk. George Gesualdo was hired on September 20, 1970, as a sales order clerk. He worked in that capacity until his discharge on June 4. Sometime in April Gesualdo asked Trost for a raise. Trost suggested he talk to William Burke, the assistant secretary of the corporation, and the general office manager in charge of sales orders, switchboard, and purchasing of equipment. Burke told Gesualdo no raise was possible, in view of the fact that the Company's business conditions were poor at that time, and told him further that he did not know when it would be possible to give Gesualdo a raise. 197 NLRB No. 161 CARLETON-STUART CORPORATION Early in May, according to Gesualdo, employee Mary Holland contacted the Union and arranged for a luncheon appointment "a couple of days" later with a business agent. According to Gesualdo before this meeting he sent to the Union a list of all company employees, and the Union sent a letter to each employee on the list enclosing an authorization card, to be signed and mailed to the Union. The letter sent by the Union indicates on its face that it was prepared on May 26. Gesualdo testified that he filled out and mailed the authorization card immediately. It bears the date May 28. Accordingly, I conclude that Gesualdo is confused with regard the date of the initial contact of the Union, and that it took place on May 24, not May 4. On May 26 Gesualdo, together with fellow employees Hanley, Holland, and Tannenberg, met with Union Business Agent Dwyer at Ruth's, a small restaurant and bar near Respondent's place of business. Later, probably on May 28, the same group met again with Dwyer at Ruth's. On this occasion, as they stood at the bar near the door, they noticed Respondent's President Saunders and its comptroller Grieco walk toward the door. Saunders made to enter the door, but Grieco pulled him by the arm and said something and walked away. According to the testimony of Gesualdo, Gneco on this occasion took out a note pad and made some notes. Neither Hanley nor Holland so testified, and Grieco and Saunders both denied that any notes were taken. On some occasion between May 26 and June 4, Gesualdo and Hanley were in another bar, called Made- lein's, having their lunch when William Burke, the office manager, and Comptroller Grieco came in and sat down a few stools from them at the bar. Burke and Gneco remained after Hanley and Gesualdo left. The General Counsel called the barmaid, Anita Clark, who testified that three men came in, a white man, a black man, and Supervisor Trost. She identified the second white-man as Mark Grieco. Miss Clark testified that the three men came to the bar and asked her what was said, and quoted one of them as asking "Did George talk about union activities." She quoted herself as answering that George never gave her any trouble, and that he had had one or two beers and a sandwich. On cross-examination, questioned as to what Trost asked about union activity, Miss Clark testified that her best recollection was that he asked if George was opening his big mouth again, and if George was spending a lot of time in the bar. On cross-examination she also testified that she did not recall Trost saying anything about union activity. Finally, Miss Clark testified that her only recollection was that one of the men had asked "was George opening his big mouth again." It became evident in her examination that Miss Clark was concerned about upholding fellow workers against management. Grieco testified that he and Burke had indeed remained in the restaurant after Hanley and Gesualdo left, and that he had asked Miss Clark whether George had been drinking and whether he was "shooting off his big mouth." His testimony is substantially corroborated by that of Burke, and I credit them. On June 4 Gesualdo was discharged by Trost, who told him that his discharge resulted from an "austerity 919 program" because of the state of the Company's business. Gesualdo suggested that he was being discharged because of his union activities and quotes Trost as answering "what am I going to tell you." Gesualdo then went to see Burke, who was in charge of his department. Burke told him that he was being discharged because of the austerity program and that others were being discharged at the same time because the business had been very bad. The conversation then involved a second week of vacation or termination pay that Gesualdo thought he had coming, and Burke disagreed. According to Gesualdo's testimony, about a week later he came to the plant in order to pick up Miss Holland and take her somewhere. He, Miss Holland, John Hanley, and Supervisor Trost went to a bar where they had a couple of drinks. In the bar Gesualdo asked Trost why he was discharged. According to his testimony, Trost answered that Gesualdo knew that he had been discharged because of his union activity. Hanley testified that Trost did not answer when he was first asked the question by Gesualdo, but that later, after Miss Holland left in Gesualdo's car, Gesualdo, Trost, and Hanley went to another bar, and again Gesualdo asked Trost why he was discharged. On this occasion, according to Hanley, Trost said only, "You know as well as I do." Although Miss Holland took the witness stand, she did not testify concerning the incident at all. Trost, asked about the same incident, substantially corroborated Hanley's testimony but stated that his final answer was "You know as well as I do, austerity." I credit Hanley's version over those of both Gesualdo and Trost. I was not impressed with Gesualdo's demeanor. On cross-examination he appeared to be evasive, and I am not convinced that he adhered strictly to the truth. Hanley, on the other hand, appeared to me to answer questions put to him, both on direct and cross-examination, as fully as he was capable of doing, and with an attempt of candor. He is no longer employed by Respondent, by his own choice, and appears to bear no malice towards Respondent. B. Discussion and Conclusions The General Counsel contends that Gesualdo was discharged because of his activities on behalf of the Union. Respondent contends that he was discharged as a result of an austerity program, and that his discharge had nothing to do with his union activities. There is no question that Respondent knew of Gesualdo's union activities at the time of the discharge, but there is considerable question that his activities were known to them when the decision to discharge him was made. Respondent proved that the year 1971 was a poor year in its particular line of business, and that because of a cool spring and early summer sales of air conditioners and related products were slow. According to the record produced by Respondent, the year's sales were in excess of 10 percent lower than the last preceding year, 1970. President Saunders decided in March that the overhead of the Company would have to be cut and, at that time, issued orders that overtime should be kept at a minimum. The officials of the Company met monthly thereafter and discussed the situation. Finally, in April or May, Saunders ordered that in the event business did not pick up by the 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first of June, 10 percent of the nonselling employee staff should be discharged. Burke, who was present at the meeting, was told that he should be prepared to discharge one employee from the sales order department and one switchboard operator. He thereupon asked Trost whom he recommended for the discharge. Trost, after a few days, suggested Gesualdo because of certain incidents that had taken place involving Gesualdo during May. Gesualdo had been under considerable pressure because he was involved in a litigation for the custody of his child, and he also found the work exacting and highly pressured. He had a loud argument with John Hanley on one occasion, and another with a salesman named Bush. On a third occasion, shortly before his termination, he had an argument with a customer who wanted stock that Gesualdo had told him the Company had in the storehouse but was already promised to another customer. It appears evident that during this period of time, Gesualdo was irritable and difficult to work with. In addition, he spent a considerable amount of time on the telephone and away from his job because of the litigation, and Trost complained that he was spending a considerable amount of time on the telephone talking to Miss Holland, who worked in another portion of Respondent's plant. Of the employees who were at that time working in the sales order department, only one had less seniority than Gesualdo, a young man named Shea. According to the testimony of Burke and Trost, Shea had been employed to work on the Kelvinator line and did not do much work on the Carrier line but was transferred over to the Carrier line when Gesualdo was discharged. They also testified that Shea was a bright and eager young man, easy to get along with, and that they considered him a better employee than Gesualdo, although he had less seniority. The record is clear that Respondent fired about 15 of its employees, thereby cutting out about $150,000 a year of its overhead, as a result of the austerity program. Additionally on May 25 Respondent stopped all or most overtime among its employees for the same reason.[ The General Counsel contends alternatively that, assum- ing that Respondent, in fact, had an austerity program, the selection of Gesualdo to be discharged was discriminatory. The General Counsel relies on the alleged admission of Trost to support the theory. However, as I stated above, I do not credit Gesualdo's testimony, and I do not find that the statement attributed by Hanley to Trost constitutes an admission that Respondent discharged Gesualdo because of his union activity. The statement "you know as well as I do" is as ambiguous as could be devised and reasonably could be expected to alleviate an argument in what must by that time have become a rather alcoholic situation. The General Counsel additionally relies on three alleged incidents to show that Respondent viewed the Union with animosity and thus to support the General Counsel's theory. The first such incident is based on the testimony of i It appeared at the hearing that the General Counsel was contending that the Respondent cut out overtime for discriminatory reasons. However, the evidence is clear that the decision to cut out overtime and the memorandum concerning it were issued before Respondent had any knowledge of union activity and, indeed, probably before any union activity took place. 2 The mailing was sent not only to the rank-and-file employees but to the Gesualdo that, within a few days of his second meeting with Mr. Dwyer, he was called to William Burke's office, where Burke asked him what his feelings were about the Union. Burke said that he knew of Gesualdo's hope of increasing his income by going out in the field and that his union adherence would not be healthy because that was not the way to go about it. Burke also said that he thought that Gesualdo had an obligation to the Company, and Gesualdo answered that he did not think he was being compensated enough to sustain the needs of his family and himself. Nevertheless, Burke said that he was not being fair to the Company to associate himself with the Union. Burke categorically denied any such conversation. On balance I find it impossible to believe Gesualdo. He definitely placed the conversation on a Wednesday evening, after the receipt of the Union's mailing by all employees of Respondent .2 The record reveals that the mailing was sent out on May 26, and was received on May 28 by the persons to whom it was addressed. The next succeeding Wednesday was June 2, two days before Gesualdo's discharge. It is incomprehensible to me that Burke would have made any attempt to sound out Gesualdo on his union feelings, or to dissuade him in his adherence to the Union at a time when Respondent had already decided to discharge Gesualdo. As far as ascertain- ing Gesualdo's union proclivities at this time, there is no question that on May 28 or the following work day, Gesualdo discussed with Trost the receipt of the union mailing, and asked Trost whether he was interested in joining the Union. To this Trost answered that he did not believe that he should be interested, as he considered that he was a member of management .3 As I have found above, Gesualdo was not a credible witness. It appears that there was an occasion when Gesualdo was called into Burke's office on about May 26, when he was reprimanded by Burke for the argument he had had with the salesman, Bush, and it could well have been on that occasion that Burke pointed out to Gesualdo that his temperamental conduct was inappropriate to a position as salesman, which Gesualdo appears to have been seeking. I believe that the interrogation that Gesualdo attributed to Burke did not take place on that or any other occasion. I shall recommend that the allegation concerning that interrogation be dismissed. The General Counsel also contends that the incident that took place when Grieco and Burke questioned the barmaid, Miss Clark, about Gesualdo, and the incident when Grieco and President Saunders allegedly saw the employees meeting with Business Agent Dwyer at Ruth's bar, constituted surveillance of the employees' union activities. I have found, with regard to the first, that the questioning did not involve the Union, and with regard to the second, that there is no evidence that the Respondent knew that the employees were in Ruth's at the time or that they were meeting with a union agent, nor is there any supervisory and managerial staff, including the President Saunders. 3 Gesualdo placed this conversation on the second Friday preceding his discharge. This places the conversation on May 26. There is no evidence that Respondent had any knowledge of the union organization before May 28, when the union mailing was received by Respondent's officers Additionally, Gesualdo originally placed the conversation with Burke on a date after the union mailing was received. CARLETON-STUART CORPORATION 921 evidence that they did more than pause in front of the restaurant. The account given by Saunders is completely consistent with that of the other witnesses, except Gesual- do, who alone of all the witnesses testified that Grieco took out a piece of paper and a pencil and made some notes. I find this difficult to believe. In the first place, there does not appear to have been anything to make notes of. There were only three employees present with Dwyer, and surely, if Grieco saw them and recognized Dwyer, which is improbable, he would have no trouble remembering the three employees that he saw. As in the other incidents referred to above, I do not believe Gesualdo's testimony but credit that of Hanley and Saunders. Accordingly, I find no evidence that either of these encounters amounted to anything in the nature of surveillance, or that Respon- dent had any reason to know that any union activity was under way at the time .4 I have found that the General Counsel did not present convincing evidence to support any of the allegations of 8(a)(1) violations contained in the complaint. While the record fairly bears the inference that Respondent did not welcome the Union, there is no evidence that Respondent acted with such animus that it may fairly be inferred, over the Respondent's economic defense, that Gesualdo was selected for discharge because of his union activity. There seems little doubt that Gesualdo, at least in the last month of his employment, had been irritable and argumentative at his work. Although he was somewhat senior to Shea, who was retained in his place, there is no evidence that Shea was not, as characterized-by Respondent's witnesses, an excellent and accommodating employee. The only factor that supports the General Counsel's theory is the timing, which is indeed suspicious. However, the credited evidence adduced by Respondent reveals that its decision to discharge 10 percent of the nonselling employees was reached before any contact with the Union was made by anyone, and Respondent's timetable of discharges is surely not inherently improbable. Accordingly, I conclude that the General Counsel has not sustained his burden of supporting the allegations in the complaint with substantial evidence on the record as a whole. I recommend, therefore, that the complaint be dismissed in its entirety. 4 The complaint alleges that these incidents took place on May 26 and According to the testimony of Dwyer, the dates were probably May 24 and 27. Gesualdo, in his testimony, originally placed the first on May 15 and the May 26 However, there is no evidence that Respondent knew anything second at some indeterminate time after May 19, but before his discharge . about the Union until May 28.