Teamsters Local Union No. 115

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters Local Union No 115, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Nate Ben's Reliable, Inc) and Herman Benn Case 4- CP-245 June 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS PENELLO AND WALTHER On January 23, 1976, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding Thereafter, the Respondent filed ex- ceptions and a supporting brief, and a brief in oppo- sition to the cross-exceptions and briefs filed by the General Counsel and the Charging Party Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order I However, he chose not to rely on certain credited testimony concerning the actions of Union Organizers Fisher and Bruno during the picketing because the allegations of the complaint had been proved independently We agree that the Respondent's purpose to secure recognition and bargaining is independently established,' but also rely on Fisher's shouting "on strike-on strike," and Bruno's statement to Benn that he would have to "work out a contract" with the Respondent as addi- tional evidence of that objective The Respondent contends that it should not be bound by the "isolated" conduct of low-level offi- cials and that the Administrative Law Judge erred in crediting Singer,' the Employer's general manager, and in not crediting Fisher It argues that Singer's testimony should not be relied on because it was de- nied both the right to impeach him and to make an i Apparently the references at the hearing and in the Administrative Law Judge's Decision to the "Dover Valley" in fact refer to the "Delaware Val- ley " H ' owever, we do not rely on any failure of the Respondent to investigate whether the Employer was substandard as to wages , hours and working conditions Respondent is the collective-bargaining representative of em- ployers at other similar store, in the area and, until recently , was the repre- sentative of the Employers employees We believe that it was adequately informed as to the comparative standards offer of proof However, the portion of the record on which the Respondent relies does not support the claim that it was denied the right to make an offer of proof Additionally, it is said, Singer cannot be credited, nor Fisher discredited, because Fisher, whose con- trary testimony was stipulated into the record from a court transcript, did not appear at the hearing But the parties did not stipulate the truth of Fisher's testi- mony and Respondent's reliance on Local Union No 741, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (Keith Riggs Plumbing and Heating Contractor), 137 NLRB 1125 (1962), for a general proposition that the credibility of stipulated testimony cannot be resolved is misplaced There all testimony was stipulated with the understanding that the Trial Examiner would not attempt to resolve the credibility of witnesses not appearing before him, and he did not do so Id at 1127, 1133 Here the Administrative Law Judge had the opportunity to observe Singer's demeanor and there was no under- standing that the Administrative Law Judge would not make credibility resolutions Credibility resolu- tions, of course, can be, and are, made without ob- serving witnesses Were it otherwise, we could never reverse an Administrative Law Judge's credibility resolution The Respondent apparently recognizes the frailty of its general proposition, for it adds as a condition that Fisher's testimony was not inherently incredible But we do not think an Administrative Law Judge can discredit stipulated testimony only when it is in- herently incredible Even as an Administrative Law Judge may refuse to credit uncontradicted testimony based on his observation of a witness, he may also, in our judgment, credit the testimony of a witness who has appeared before him over a bare denial stipulat- ed into the record Nor are we persuaded by the Respondent's argu- ment that it should not be bound by the "isolated" actions of Fisher and Bruno, whom it describes as minor union employees or mere organizers The inci- dents are not "isolated" but completely in character with circumstances which independently establish the nature of the Respondent's objective, and arose directly from their duties as pickets 4 3 However, Singer's only testimony now in issue-that Fisher shouted on strike -merely corroborates Benn 4 Ontario Knife Company 191 NLRB 388 (I971), and Pangles Master Mar kets Inc, 190 NLRB 332, 336 (1971), which the Respondent relies on, are clearly not in point Boilermakers Local Lodge # 193 International Brother hood of Boilermakers Iron Shipbuilders Blacksmiths, Forgers and Helpers AFL-CIO (United Engineers & Constructors Inc) 191 NLRB 608 (1971) involved a single remark indicating that the respondent sought recognition with little other support for that conclusion 224 NLRB No 49 TEAMSTERS LOCAL UNION NO 115 389 ORDER 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, Local Union No 115, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Philadelphia, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the Administrative Law Judge's recommend- ed Order place of business located on Market Street in Philadelphia, Pennsylvania During the calendar year preceding the is- suance of the complaint, the Company's gross revenues were in excess of $500,000 and it purchased goods valued in excess of $50,000 which were shipped to its Philadelphia location through channels of interstate commerce from suppliers located outside the Commonwealth of Pennsylva- ma The complaint alleges, the answer admits, and I find that during all times material hereto Nate Ben's was an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE UNFAIR LABOR PRACTICES DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge Upon a charge filed by Herman Benn, an individual, on August 8, 1975, a complaint against Respondent, Teamsters Local Union No 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, dated September 17, 1975, was issued alleging that the Union has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b)(7)(B) of the National Labor Relations Act, as amended In substance, the complaint alleges that since August 5, 1975,1 the Union has been picketing Nate Ben's Reliable, Inc, herein called Nate Ben's or the Com- pany, a retail furniture and appliance store, with an object of forcing and requiring the Company to recognize and to bargain with the Union as the representative of its drivers, warehousemen, and helpers, although within the preceding 12 months the Union failed to obtain a majority of the votes in a valid election conducted under Section 9(c) of the Act Respondent filed an answer denying that it had engaged in the alleged unfair labor practices Respondent's defense, in substance, is that it was picketing solely to pro- test the Company's failure to meet area standards A hear- ing in this proceeding was held on November 18, 1975, in Philadelphia, Pennsylvania Briefs have been filed with me by General Counsel, Respondent, and the Charging Party Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION The complaint alleges and Respondent admits that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act These proceedings arise out of picket- ing conducted by the Union at the premises of Nate Ben's Reliable, Inc Nate Ben's, a Pennsylvania corporation, is engaged in the retail sale of furniture and appliances at its 1 All dates refer to the year i975 unless otherwise indicated On April 5, 1973, the Company voluntarily recognized the Union as the collective-bargaining representative of the following unit of its employees "All drivers, warehouse- men, and helpers of the employer at its 2116 to 2120 Mar- ket Street, Philadelphia, Pennsylvania, location, excluding office clerical employees, all other employees, guards and supervisors as defined in the Act " Thereafter, the parties began collective-bargaining negotiations which were un- successful In May 1973, the Union called a strike against the Company and began picketing the Company's premises with signs which read, "On Strike " (The picket signs did not state that the Company was paying substandard wages or otherwise define the dispute) The picketing with these same signs continued for more than 2 years until August 4, 1975 On January 7, 1974, a decertification petition was filed in Case 4-RD-586, pursuant to which an election among the employees in the above-described unit was held on March 12, 1974 The results of the election were five ballots cast for the Union, five ballots cast against the Union, and three ballots challenged The proceeding to determine the challenged ballots was protracted Ultimately, the Board sustained the challenges in its Decision and Certification of Results of Election, issued on July 30, 1975, and reported at 219 NLRB 818 (1975) As the Union did not obtain a majority of the votes in the election, it thereupon ceased to be the exclusive collective-bargaining representative of the employees in the above-described unit The Union removed its pickets on August 4 The same two individuals, Harold Fisher and James Oliver, who were employed as organizers by the Union, had been conduct- ing the picketing since the commencement of the strike (As Respondent did not receive a copy of the Board's De- cision until August 4, General Counsel does not contend that the Union was guilty of any unlawful conduct by rea- son of the 5-day lapse between the date of the Board's Decision and the removal of the "On Strike" picket signs) The next day Fisher and Oliver returned to the Company's premises and resumed picketing, this time with signs read- ing, "Nate Ben's Reliable Pays Substandard Wages and Fringe Benefits " Regarding the circumstances which led to the resump- tion of picketing with the new signs, Gerald Sheehan, coor- dinator of the Union, testified that the Union received a copy of the Board's Decision in the decertification pro- ceeding on August 4 That day Sheehan discussed the deci- 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sion at a meeting with John P Morns, secretary-treasurer and business manager of the Union, and Joseph Young- man, senior business agent According to Sheehan, "[I]t was determined and decided that even though we had been advised by the Board that we were not certified, the Union would continue to advise the general public that this com- pany paid sub-standard wages and fringe benefits " 2 A telephone call was placed to the Union's attorney, Hugh Beins, with whom "the situation" involving the Company was discussed and a "letter was dictated by Mr Beins" which was mailed that day to the Company The letter reads This is to advise you that we have been informed of the decision reached by the National Labor Relations Board as regards the challenged ballots We wish to advise you that we are no longer interested in organiz- ing your employees and we make no claim for recogni- tion as the bargaining agent of your employees We wish to advise you that we will continue our ef- forts to inform the public that Nate Ben's Reliable, Inc is substandard in Wages, Hours, and Working Conditions Apart from the self-serving language of the picket signs, the above-quoted letter, and the testimony of Sheehan, there is not a shred of evidence in the record that the Union on August 4 had abandoned the objective it had been pursuing for more than 2 years of seeking to negotiate a collective-bargaining agreement with the Company and on the very next day began to picket the Company for a different and unrelated purpose, to wit, to advise the public that the Company was "substandard in Wages, Hours, and Working Conditions " Neither the picket signs nor the Union's August 4 letter explained what was meant by the expression "substan- dard " Sheehan testified that the meaning of the term was not discussed when the letter to the Company was com- posed According to Sheehan, "Obviously this is something that you know intuitively " He explained, "Obviously we are in a Union We are doing this every day in the week So we think that anybody who pays a lesser rate of pay is sub-standard to that Union contract " Depending upon whether the Company is considered a retail furniture store or a retail appliance store there are either approximately 250 or approximately 60 such stores in the Company's trading area which is known as the Greater Dover Valley However, according to Sheehan, Respondent has collective-bargaining agreements with only eight or nine furniture stores Sheehan furnished no information as to whether any of the stores in the same trading area have collective-bargaining agreements with other labor organizations He testified that the Union had no information as to what the other furniture stores were paying its employees and had no authoritative information as to the current wage rates and fringe benefits at the Company's store except for hearsay twice removed that the Company's drivers were being paid less than the rate pro- vided in the eight or nine union contracts Since early 1973, no inquiry had been made by the Union of the Company as to what it was paying its employees and what fringe benefits it was providing them As the Board recently restated Area standards picketing can only be justified where, in fact, the picketed employer's mode of opera- tion can be shown to be substandard in comparison with the negotiated area standards This necessarily means that there must have been an investigation and an evaluation of comparative standards carried out with as great a degree of thoroughness as the circum- stances will permit 3 This test clearly has not been met by Respondent Further evidencing the speciousness of Respondent's al- leged area standards picketing are the following 1 The Company never was advised by the Union what constituted substandard wages, hours, and working condi- tions Sheehan's rather lame explanation for such omission was that "we think that Nate Ben is a pretty knowledge- able guy and he has done a lot of business in this town and I think he knows what the area rates are and he knows what union contracts are paying He knew in 1973 when we organized him and I am sure he has kept up to date on that " Further, Sheehan's testimony reveals that he is un- certain as to what the Company would have to do to com- ply with the so-called Union's area standards (other than adopt and become party to a contract with the Union), as meeting the Union's wage rates alone would not suffice 2 The Union has not engaged in area standards picket- ing within the past 2 years so that the Union does not have a general ongoing concern to cause the employers in the area to meet the alleged standards 3 At the time the decision was reached to picket the Company with area standard placards the Union had no plans to extend such picketing to other employers From the point of view of improving area standards, no consider- ation was given to whether greater benefit would be ob- tained by picketing a larger store rather than Nate Ben's which then had only six employees That the Union was still pursuing a recognitional objec- tive is reflected by the following testimony by Sheehan WITNEss During the previous summer, we took a thirteen week strike at a furniture place that only had two employees, one driver and one helper JUDGE SILBERMAN To get them to pay area stan- dards9 WITNESS That is right We took a strike to win the contract and in that particular case, we did so In the same circumstances we would have continued to pick- et them to advertise that they were paying sub-stan- 3 Automotive Employees, Laundry Drivers & Helpers, Local No 88, Interna 2 Although prior to August 5 the Union had not advertised on its picket tional Brotherhood of Teamsters Chauffeurs Warehousemen & Helpers of signs or elsewhere that the Company was paying substandard wages and America (West Coast Cycle Supply Co), 208 NLRB 679, 680 (1974) See also fringe benefits, Sheehan testified , "In my estimation, the fact that we were San Francisco Local Joint Executive Board of Culinary Workers Bartenders, on strike out there for twenty-seven months and were telling the public that Hotel, Motel and Club Service Workers, AFL-CIO (APB Enterprises Inc every single day " d/b/a Perry s) 207 NLRB 199 (1973) TEAMSTERS LOCAL UNION NO 115 391 dard wages and fringe benefits It was not the number of people involved JUDGE SILBERMAN It wasn't9 WITNESS No, it was the principle JUDGE SILBERMAN The principle'? WITNESS That he is paying sub-standard wages and fringe benefits and we would like to let the people in Philadelphia who are potentially his customers know that fact [Emphasis supplied ] General Counsel adduced the following additional evi- dence of conduct on the part of the Union's pickets since August 5 which he contends was inconsistent with the Union's avowed purpose of merely advertising to the pub- lic that the Company was maintaining substandard condi- tions of employment 4 On two occasions on August 6, Harold Fisher shouted to customers who were entering the company store, "On strike, on strike " Also, on August 6, as a driver for the Mason-Dixon Truck Lines was about to make a delivery, Harold Fisher approached the driver and asked whether he was going to make a delivery The driver inquired why he should not and Fisher replied that the driver could see that the prem- ises were being picketed Fisher then suggested that the driver call an official of Local 107 of which the driver was a member The driver placed a call from a radio telephone in the cab of his vehicle and then departed without making the delivery 5 A similar incident occurred on August 7 Fisher approached the driver of a truck for Co-Op Cartage as he was about to make a delivery and stated to the driver that before he made the delivery he should call his boss The driver left to make a telephone call and when he re- turned he drove away without delivering the merchandise On August 8, Fisher made the following remark to a representative of a glass company who was estimating the cost of replacing some broken windows in Nate Ben's premises "You have blue trucks out on the street and kids like to throw bricks at trucks at glass " Finally, on September 21, according to Herman Benn, manager of the store, in a conversation with Dominic Bru- no, a union organizer, he asked what the Union's purpose was in continuing to picket the Company's premises and Bruno replied, "[C]ome on, Herman, you know you are going to have to up the wages and you are going to have to sit down and work out a contract with us " 4 1 credit the testimony of General Counsel's witnesses which I summarize below The specific testimony was generally denied by Respondent's wit- nesses Bruno, Oliver, and Fisher Fisher did not appear as a witness at the hearing but a transcript of his testimony given during a hearing in an in- junction proceeding before a United States district court was received in evidence No neutral witnesses corroborated the testimony given by either General Counsel's or Respondent 's witnesses No objective factors were introduced against which the reliability of General Counsel's or Respondent's witnesses could be measured The testimony given by all the witnesses at the instant hearing was relatively short Thus, my credibility determinations largely turn upon my impression as to the reliability of the testimony of the respective witnesses Both Bruno and Oliver appeared to me to be defensive and to be more concerned with providing testimony favorable to Respondent's cause than with describing precisely the events about which they were questioned I am of the opinion that they were not reliable witnesses 5 The merchandise was delivered later the same day Apart from denying that the foregoing incidents oc- curred, Respondent's position would appear to be that they reflected unauthorized conduct on the part of the individu- als involved and therefore should not be considered in as- sessing the object of picketing Nate Ben' s premises on and after August 5 Thus, Gerald Sheehan testified He [Morris] told them [the pickets] that they had to be very very careful on the picket line as to what they said He specifically told them that they could not ad- vise anybody that Nate Ben's was on strike He also said that in talking to employees that they would have to be very very careful-or if he were talking to Mr Benn himself that he had to be very careful that if he came out and said, what would it take to end this that they had to be very careful that they were not trapped into saying something like, if you would sign a con- tract that would end it He advised them of that While I do not necessarily agree with Respondent that the described conduct on the part of Fisher and Bruno may not be attributed to the Union, nevertheless, I shall ignore such evidence in making my findings herein, because even without the benefit of that evidence General Counsel has clearly proved the allegations of the complaint I find that an object of Respondent in picketing the Company's premises on and after August 5 was the same as it had been pursuing theretofore, namely, to force or require the Company to recognize and to bargain with it III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Nate Ben's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 By picketing Nate Ben's premises on and after August 5, 1975, Respondent Union has engaged in unfair labor practices in violation of Section 8(b)(7)(B) of the Act in that an object of such picketing was to force or to require the Company to recognize and to bargain collectively with Respondent Union as the representative of the Company's employees, notwithstanding the fact that the Respondent Union was not the certified representative of such employ- 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees and a valid election under Section 9(c) of the Act had been conducted within the preceding 12 months 6 2 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER? Respondent, Teamsters Local Union No 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Philadelphia, Pennsylvania, its officers, agents, and representatives, shall 1 Cease and desist from picketing or causing to be pick- eted Nate Ben's Reliable, Inc, where an object thereof is forcing or requiring it to recognize or to bargain with Re- spondent Union as the representative of it employees in circumstances which would violate Section 8(b)(7)(B) 2 Take the following affirmative action which is deemed necessary to effectuate the policies of the Act (a) Post at its business offices and meeting halls copies of the attached notice marked "Appendix " 8 Copies of 6 The decisive date for determining when the valid election has been con- ducted is the date on which the Certification of Results of Election issues San Francisco Local Joint Executive Board of Culinary Workers, supra at 203 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions , and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read ` Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board said notice, on forms provided by the Regional Director for Region 4, after being duly signed by an authorized rep- resentative of the Respondent, shall be posted by the Re- spondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (b) Mail to the Regional Director for Region 4 signed copies of said notice for posting by Nate Ben's Reliable, Inc, if the Company shall be willing to post such notices, at places where notices to its employees are customarily posted (c) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT picket or cause to be picketed Nate Ben's Reliable, Inc , where an object thereof is to force or to require the Company to recognize or to bargain with us as the representative of its employees in viola- tion of Section 8(b)(7)(B) of the National Labor Rela- tions Act TEAMSTERS LOCAL UNION No 115, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA