Silverman's Men's Wear, Inc.

SILVERMAN'S MEN'S WEAR, INC. Silverman's Men's Wear, Inc. and General Ware- housemen and Employees' Union Local 636 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 6-CA-13326 August 6, 1982 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On August 4, 1980, the Board issued a Decision and Order in this case,' finding that Respondent had violated Section 8(a)(5) and (1) of the Act, as amended, by refusing to bargain collectively with the Union. On August 6, and as amended on August 17, 1981, the United States Court of Ap- peals for the Third Circuit denied enforcement of the Board's Order and remanded the case for a hearing on Employer's Objection 2 in Case 6-RC- 8448.2 On October 28, 1981, pursuant to the court's order, the Board issued an Order Reopening Record and Remanding Proceeding to Regional Director for Further Hearing. On January 28, 1982, following a hearing, Administrative Law Judge Jerry B. Stone issued his Decision in this proceeding, finding that the Union had not en- gaged in the objectionable conduct alleged in Em- ployer's Objection 2 and recommending that the Board's Order in this proceeding be reiterated, that the prior certification be continued in effect, and that Objection 2 be overruled. Thereafter, Re- spondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings, findings, and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. 250 NI.RB 1388 No 80 2574 { 1980). Respondent has excepted to certain credibility findings made by the Administrative Laws Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are Incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has excepted to the Administrative Law Judge's refusal to allow testimony to demonstrate post-election changes in the bargaining unit. The Administrative Law Judge sustained the General Counsel's ob- jections to such testimony on the ground that any issue of change in the bargaining unit was beyond the scope of the hearing. We agree. It is well established, furthermore, that, absent special circumstances, there is an ir- rebuttable presumption that the majority status of a certified union con- tinues for I yeat from the date of the certification. As Respondent's re- 263 NLRB No. 23 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board affirms its Order as contained in its original Decision and Order issued August 4, 1980, in this proceeding. fusal to bargain occurred dunng the certification year. this presumption is clearly applicable. Moreover, even if Respondent's refusal to bargain had not occurred during the certification year. the Board has long held that the factor of employee turnover does not establish that the Union has lost its majority status. Accordingly, we find no merit in Respondent's con- tention. We also find no merit in Respondent's contention that it was denied due process by the Administrative Law Judge's ruling that Respondent might not cross-examine Baird about organizing campaigns other than the one involved in this proceeding. Respondent's opportunity to test Baird's memory was ample in the context of the issues directly involved in the instant proceeding. We find that the Administrative Law Judge did not abuse his discretion by preventing Respondent from introducing collater- al issues into this proceeding. DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: The peti- tion in Case 6-RC-8448 was filed on March 30, 1979. Thereafter, on May 31, 1979, an election was held pursu- ant to a Stipulation for Certification Upon Consent Elec- tion at Respondent's distribution warehouse in Warren- dale, Pennsylvania. The Petitioner, General Warehouse- men and Employees' Union Local 636 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, won 29 to 23. Respondent filed objections to the election, including an objection that the Union's secretary-treasurer, Robert Baird, had infected the election atmosphere with religious prejudice by his remarks at a union meeting concerning Respondent's vice president, Mark Silverman. Without an objections hearing, the Regional Director recommended that the Board overrule the objections and issue a certification of the Union as the collective-bargaining representative of the employees involved. The Board adopted the recom- mendation. After certification, the Union demanded that Respondent bargain collectively pursuant to Section 8(d) of the Act. Respondent refused to bargain. On April 3, 1980, the Charging Party (the Petitioner in Case 6-RC-8448) filed an 8(a)(5) and (1) unfair labor practice charge. On April 23, 1980, the Regional Direc- tor for Region 6 issued on behalf of the National Labor Relations Board an unfair labor practice complaint in Case 6-CA-13326. Such complaint alleged in effect that Respondent had refused to bargain with the Union (the Charging Party in Case 6-CA-13326 and the Petitioner in Case 6-RC-8448). Thereafter, on August 4, 1980, the National Labor Relations Board, in a decision reported at 250 NLRB 1388, granted a motion for summary judg- ment, found that Respondent had violated Section 8(a)(5) and (I) of the Act by refusing to bargain with the Union, and issued a remedial order requiring Respondent to bar- gain with the Union upon request. 191 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, on August 6 and 17, 1981, the U.S. Court of Appeals for the Third Circuit refused to enforce the Board's Order in Case 6-CA-13326 as referred to above and remanded the proceeding to the Board for hearing on the Employer's Objection 2 in Case 6-RC-8448.' On October 28, 1981, the National Labor Relations Board remanded Case 6-CA-13326 to the Regional Di- rector for Region 6 of the National Labor Relations Board for the setting of a hearing on Objection 2 in Case 6-RC-8448. On November 5, 1981, the Regional Direc- tor for Region 6 of the National Labor Relations Board duly set this proceeding for hearing on November 23, 1981. The issues as set for hearing were limited to a determi- nation of the merits of the allegations presented in the Employer's Objection 2 in Case 6-RC-8448. On November 23, 1981, all parties were afforded full opportunity to participate in the proceeding. Briefs have been filed by Respondent and by the Charging Party and have been considered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDINGS OF FACT2 THE OBJECTIONS ISSUE Objection 2 The Employer's Objection 2 is as follows: At the same meeting called by the Union, the union representative, Mr. Robert Baird, while lead- ing and conducting the meeting, resorted to inflam- matory propaganda on matters which in no way re- lated to the choice before the voters. The petitioner interjected irrelevant racial and religious appeals at the meeting attended by this large group of eligible employees. His action was a deliberate attempt to provoke the employees, through racial and religious remarks which were defamatory toward the Employer, shortly before the election. It was an effort to over- stress and exacerbate racial and religious feelings by irrelevant, inflammatory appeal. The parties presented four witnesses with respect to the issues presented by the Employer's Objection 2. Such witnesses were Tomiann Boots, Amy L. Thorpe, Loretta Manges, and Robert E. Baird. A consideration of the de- meanor of the witnesses and the substance of the wit- nesses' testimony persuade that Robert E. Baird was the only witness presented whose testimony revealed itself to be reliable as to whether Baird engaged in objectionable conduct as alleged. The overall facts reveal that Boots', Thorpe's, and Manges' testimony largely alluded to "im- pression" and did not reveal in fact what was said at the Set out later herein in full detail. 2 The findings of fact and conclusions of law relating to the Employ- er's business operations and commerce and to the status of the Union as a labor organization, as set forth in the Board's decision in Silverman's Men's Wear, Inc., 250 NLRB 1388 (1980), are incorporated herein by ref- erence. union meeting on May 25, 1979. In essence, Boots'3 testi- mony at the hearing revealed no independent recollec- tion that Baird had, at the union meeting wherein the al- leged objectionable conduct had occurred, used the word "Jew" in referring to Mark Silverman. However, Boots, on June 26, 1979, subscribed and swore to an affi- davit given to the NLRB containing the following state- ments: I only attended the Friday May 25 union meeting & not the May 30 meeting. I took notes & had a list of questions but I through [sic] them away. Baird had contracts from Penney's, & Gimbels. I do not remember him inviting anyone to look at the con- tracts. I cannot be sure if someone asked to look at the contracts. He said that because we were being paid so low they were going to lower our initiation fees from $30 to $10. Baird had stated, with regard to employees at Penney's & Gimbels, that they were doing a lot better than we were for the same jobs. He did quote hourly wage figures but I do not recall what they were. I do not recall him quoting any benefits. I asked him aren't we only going to get what the company wants to give us & he said no it depends on how long you people want to hold out for. I remember somebody asking about wheth- er we will be making enough money to pay the dues but I do not remember specifically what he an- swered. I remember Baird saying the word "Jew." I am sure that he was referring to the Silvermans but I do not remember the context of the statement or what the rest of the phrase was. I got the impres- sion, however, that the comment was derogatory. He also said that we were lower paid than people on welfare. (With regard to this statement I do not know if he was referring to their actual payments or their payments plus benefits.) Amy L. Thorpe, another witness presented by the Em- ployer, attended the May 25, 1979, union meeting. Thorpe testified that Baird did not use the word "Jew." Thorpe testified, however, that Baird stated that a union was needed because "we work for those kind of people." Thorpe also testified to the effect that such remark to the effect that "we work for those kind of people" occurred around the time that Baird was comparing Silverman's with J. C. Penney's, Homes, and Gimbels. Exactly who raised the question of whether the word "Jew" or "Jewish" was used by Baird on May 25, 1979, is not re- vealed. In any event Thorpe and several other employ- ees later discussed the question of whether such words were used and decided that they were not used. Thorpe in her affidavit to the National Labor Relations Board set forth that "I never heard any union representative refer to the Silvermans as stingy Jews and I never heard them say anything about their religious or ethnic back- ground." Loretta Manges was the only witness presented by the Employer who supports a contention that the word 3 At the time of the events in 1979, Boots was unmarried and known as Tomiann Van Dyke. 192 SILVERMAN'S MEN'S WEAR, INC. "Jew" or "Jewish" was used by Baird on May 25, 1979. Manges testified that such words were used, one or the other. Manges, however, did not know the context in which such word ("Jew" or "Jewish") was used. Manges' pretrial affidavit, dated June 1979, does not reveal that such words-"Jew" or "Jewish"-were used. Rather, Manges' pretrial affidavit set forth as follows- "At no time during the May 25 or May 30 meeting did Baird or any other union representative call Silverman any name or refer to his religious or ethnic background." On cross-examination, Manges' explanation was not per- suasive as to the inconsistency between her affidavit given to the NLRB in 1979, and a statement given to the Employer's attorney in 1981 and her testimony in this proceeding. The sum of Boots', Thorpe's, and Manges' testimony, when considered without the testimony of Baird, reveals itself in composite effect to be unreliable to establish that Baird had made racial or religious slurs about the Silver- mans. Rather, Thorpe's, Boots', and Manges' testimony is revealed to be based upon impression. Considering the testimony concerning comparing the Employer's benefits and wages with welfare benefits, such impression could simply be a conclusionary deduction by Thorpe, Boots, and Manges from such comparisons. 4 Finally, Baird, who impressed me as a thoroughly honest, frank, and forthright witness, testified in detail as to what he told employees at the May 25, 1979, union meeting. Baird emphatically denied that he used any words or statement concerning the Silverman's race, reli- gion, or anything having to do with ethnic background. I found Baird to be a completely credible, objective, and reliable witness. I credit his testimony in denial that he made racial or religious slurs concerning the Silvermans at a union meeting on May 25, 1979. 4 I note that Manges testified that the word "Jew" or "Jewish" was used. Manges' testimony otherwise was not persuasive that such recollec- tion was reliable. Conclusion Based upon the foregoing, it is concluded and found that the Union has not engaged in objectionable conduct as alleged in Employer's Objection 2. It will be recom- mended that Employer's Objection 2 (Case 6-RC-8448) be overruled. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Conclusions of Law set forth by the Board in Silverman's Men's Wear, Inc., reported at 250 NLRB 1388, are hereby incorporated by reference and reiterat- ed. 2. The Union (General Warehousemen and Employ- ees' Union Local 636 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) has not engaged in objectionable conduct (as alleged in Objection 2 by the Employer in Case 6-RC- 8448) and has not thereby engaged in conduct which in- terfered with the conduct of the election, or the employ- ees' exercise of a free and untrammeled voting right in such election, held in Case 6-RC-8448 on May 31, 1979. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Sections 10(c) and 9(a) of the Act, I hereby issue the following recommended: ORDER s 1. The Board's Order as set forth in Silverman's Men's Wear, Inc., reported at 250 NLRB 1388, is hereby reiter- ated. 2. The prior certification in Case 6-RC-8448 is contin- ued in effect. 3. The Employer's Objection 2 in Case 6-RC-8448 is overruled. a 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 find- ings, 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. 193