Botany 500

BOTANY 5) 527 Botany 500, a Division of Rapid-American Mens- wear, Inc. and Sally Davidow. Case 4-CA-9780 August 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELO AND TRUEISDAI.E On March 26, 1980, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in answer to the exceptions. 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, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. 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 complaint be, and it hereby is, dismissed in its entirety. I The General Counsel has excepted to certain credibility findings made by the Administrative l.aw Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr), Wall Products. Inc, 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing his findings 2 In affirming the Administrative Law Judge's conclusion that deferral to an arbitration award is appropriate in this case under the principles of Spielberg Manufacturing Compeny, 112 NLRB 1080 (1955). Member Pen- ello does not rely on the Administrative Law Judge's references to the majority opinion in Suburban Motor Freight. Inc. 247 NLRB No. 2 (1980). Member Penello adheres to his dissenting opinion in the case cited DECISION STATEMENT OF THE CASE IRWIN KAPL AN, Administrative Law Judge: This case was heard before me in Philadelphia, Pennsylvania, on September 4 and 5 and October 3, 1979. The underlying charge was filed by Sally Davidow on November 21, 1978, against Joseph Cohen Co. alleging that she was discharged for reasons related to her efforts to become business agent in the Amalgamated Clothing and Textile Workers Union, Local 139 (herein called the Union). On January 26, 1979, the charge was amended only with regard to naming the Employer as Botany 500, a Divi- sion of Rapid-Menswear, Inc. (herein also called Botany 251 NLRB No. 75 or Respondent). A complaint and notice of hearing issued on January 31, 1979 (amended at the hearing), al- leging that Respondent discharged Davidow on August 10, 1978, because she engaged in concerted activities with respect to conditions of employment and engaged in intraunion matters and that Respondent thereby violat- ed Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended (herein called the Act). It was also alleged that Respondent independently vio- lated Section 8(a)(1) of the Act by making certain coer- cive and otherwise unlawful statements to Davidow on June 6, 7, and 8, 1978, because she prepared and distrib- uted a campaign leaflet containing, inter alia, unflattering material about Respondent and the Union. Additionally. it was alleged that on June 8, 1978, Respondent indepen- dently violated Section 8(a)(1) of the Act by creating the impression of surveillance of its employees' intraunion activities. On August 28, 1978, Alan Markovitz, the Union's at- torney, filed a demand for arbitration contending that Respondent discharged Davidow in violation of the col- lective-bargaining agreement (Resp. Exh. 2). The arbitra- tion hearing was conducted on September 12, 1978, which resulted in an arbitrator's award on September 26, 1978, denying the grievance and finding that Respondent discharged Davidow for just cause. In upholding the dis- charge, the arbitrator found, inter alia. that the credible evidence failed to sustain Davidow's contention that Re- spondent was motivated by her union-related activities. On February 8 and 22, 1979, Respondent filed an answer and an amended answer, respectively. On March 20, 1979, Respondent moved for summary judgment urging the National Labor Relations Board to decline to assert jurisdiction on the averment that the above noted arbitration decision comported with the standards set forth in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). Respondent also contended that the inde- pendent 8(a)(l) allegations were time barred under Sec- tion 10(b) of the Act because a valid charge was not filed against Botany until more than 6 months after the alleged unlawful acts occurred. On March 27, 1979, the General Counsel filed an opposition to Respondent's Motion for Summary Judgment, principally on the basis that the interests of the Union and Davidow were "glar- ingly hostile" and that it would not therefore serve the policies of the Act to defer to the arbitration award. In- sofar as Respondent's reliance on Section 10(b), the Gen- eral Counsel contended, inter alia, that the original charge was timely served albeit against a different named employer but that at all times material herein Respondent had actual knowledge thereof. On June 14, 1979, the Board determined that the issues can best be resolved by record testimony with leave for Respondent to raise the same issues at the hearing and accordingly denied the motion (G.C. Exh. (u)). Upon the entire record, including my observation of the demeanor of the witnesses, and after careful consid- eration of the able and comprehensive post-trial briefs, I find as follows: Botany 500, a Division of Rapid-American Mens- BOTAN 5(X) 527 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent, Botany 500, a Division of Rapid-Ameri- can Menswear, Inc., is a Deleware corporation and is en- gaged in the manufacture and wholesale distribution of men's clothing at its Broad and Lehigh Avenue, Phila- delphia, Pennsylvania, facility, its only facility involved herein. During the past year, Respondent sold and shipped goods valued in excess of $50,000 from its Broad and Lehigh facility directly to customers outside the Commonwealth of Pennsylvania. The Respondent admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. The Respondent admits, and I find, that Amalgamated Clothing and Textile Workers Union, Local 139, Phila- delphia Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, herein the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The Setting Sally Davidow, the Charging Party herein, began working for Joseph H. Cohen & Sons, a clothing manu- facturer and predecessor company to Respondent Botany in October 1975. She was employed at Respondent's Broad and Lehigh Avenue, Philadelphia, facility (herein called Philadelphia facility) initially as a pick-stitch oper- ator, but, after approximately 6 weeks, transferred to the vest department where she worked mostly as a sewing machine operator joining facings and linings to vests. Soon after Davidow began working for Respondent, she joined the Amalgamated Clothing Workers of Amer- ica, Local 139 (herein called the Union).' The Union and Respondent have long maintained a collective-bargaining relationship for all the employees (save statutory exclu- sions) employed at Respondent's Philadelphia facility, covering successive associationwide contracts, the most recent of which by its terms is effective January 1, 1977, until September 30, 1980.2 For most, if not all of the bar- gaining history, Peter Amaroso, union business agent, has serviced the above-noted unit employees. According to Davidow, she experienced her first diffi- culties with Amaroso in November 1976. On that occa- sion she complained about having $1 deducted from her paycheck to support then Candidate Carter's Presidential campaign. Davidow wanted a refund and noted that an- other employee had gotten the dollar returned to her that very day. Amaroso informed Davidow that her re- quest for a refund was untimely and explained that the dollar was returned to the other employee because the The Union after a merger became known as Amalgamated Clothing and Textile Workers Union. 2 Respondent and Union are constituent members of the Philadelphia Clothing Manufacturers Association (herein called the Association) and the Philadelphia Joint Board, Amalgamated Clothing and Textile Work- ers Union (herein called Joint Board) respectively. The Association and Joint Board are named as the principal parties in the associationwide col- lective-bargaining agreements. (See G.C. Exh. I(m), Exh. A.) objection to pay it was based on religious reasons. When Davidow continued to press for the refund, Amaroso as- sertedly countered, "If you don't like it, you can get out." At some unspecified time, Davidow became a member of a dissident group within the Union which, inter alia, published a newspaper entitled "The Garment Worker." Davidow contributed to the newspaper's spring 1977 edi- tion with a cartoon depicting Respondent Vice President Peter Colantonio and Peter Amaroso in caricature with an arm around each other with the caption "PETE & RE- PETE."3 (G.C. Exh. 7, p. 5.) Also, during the spring of 1977, Davidow campaigned actively against contract ratification, which included, inter alia, the wearing of an armband stating, "Vote No."4 In June 1978,5 Davidow decided to challenge Amar- oso more directly. Within a few days of the June 1 an- nouncement of union elections, Davidow decided to run for the office of union business agent. She prepared a campaign flyer during the first weekend in June and commencing June 6 distributed approximately 1,000 copies.6 (G.C. Exh. l(p).) The opening message thereon read as follows: KICK THE COMPANY OUT OF OUR UNION The flyer in pertinent part also contained the carica- tures of Colantonio and Amaroso referred to previously which had appeared in "The Garment Worker," with the same caption "PETE & RE-PETE." (Id.) Davidow testified that, on June 6 at or around the 10 a.m. break, Colantonio approached her while she was standing near the coke machine and complained that she spelled his name incorrectly on the flyer and did not think that the picture of him was "very nice." It is undis- puted that Colantonio stated that he could sue her for slander. Colantonio's version of this encounter is some- what different. According to him, he asked Davidow to do him a favor and draw a better picture of him next time. The union election was conducted on June 7. Davi- dow appeared at the facility before the 8:30 a.m. starting time and went around promoting herself for the election to be held later that day. Her last stop before starting the workday was in the ladies bathroom on the sixth floor where she continued to campaign. Shortly before 8 a.m. Davidow came out of the ladies bathroom with her friend Madeline Smith right behind her when Davidow was suddenly confronted by Colantonio. He demanded to know what she was doing on the sixth floor when it was almost working time and he ordered her to go to her station on the fifth floor, promising to return in 5 minutes to confirm that she left the area. Davidow stated *' There is no evidence tending to shosA that either Respondent or the Union had knowledge that DavidowK was responsible for the cartoon. 4 While Davidow asserted that "a lot of people got harassed for wear- ing these armbands," the testimony thereon is conclusionary, vague, and does not link Amaroso or ay other union official to such conduct ' All dates hereinafter refer to 1978 unless otherswise indicated. 6 The record reveals that at all material times in June, Respondent had knowledge that Davidol, actively opposed Aoarnel for the office of union business agent. BOTANY 500 529 that she spoke to her lawyer and insisted that she had a right to be there. Colantonio stated that he also spoke to his lawyer and disputed that Davidow had any right to be in the area. Davidow testified that, before Colantonio left, he added, "I ought to have you locked up for the damage you've done already." Smith largely corroborat- ed Davidow's version of the incident. Colantonio's ac- count differs materially only in that he denied making any reference to locking Davidow up for the damage she had done. During the course of the morning of June 7, Davidow and Smith had separate spirited encounters with Joe Di Dinato, the shop chairman for the 5th floor employees, regarding the election. Di Dinato was appointed to his union position by Amaroso and vigorously campaigned for his reelection. Smith asserted that she was "fairly ou- traged" at the reasons given to employees by Di Dinato for supporting Amaroso rather than Davidow and, when she tried to defend Davidow, Di Dinato told her to shut up. According to Smith, Supervisor John Amano escort- ed her to the office where she also met John Camodeca, production supervisor. Smith testified that Camodeca told her that Davidow made a mistake by first runing for business agent rather than for joint board or executive board. At or around 11 a.m. Davidow also exchanged com- ments with Di Dinato about campaigning. She told him that, if he could campaign during working hours, so should she. Davidow testified that, when Di Dinato told her to go ahead and campaign, she refused contending that she would be fired for it. According to Davidow, Di Dinato noted "You can get fired anyway, you can get fired for that leaflet.' The union meeting was held at the union hall at 4 p.m. There were approximately 500 people in attendance in- cluding John Camodeca and some other supervisors. At least 25 percent of the employees in attendance had to second a nomination for it to be accepted. Amaroso was nominated first and over 300 employees expressed their support of his candidacy. Madeline Smith nominated Da- vidow. As only 14 employees backed her nomination, Davidow failed to acquire the necessary 25 percent and her nomination accordingly was rejected. Amaroso ran unopposed and was reelected business agent. According to Davidow the next day, June 8, at the 10 a.m. coffeebreak, she was again encountered by Colan- tonio. She testified that Colantonio told her "the first time its funny, but after that, its not so funny anymore and I don't want you to do this kind of thing anymore." Colantonio denies this incident in its entirety. Smith as- serted that on that same day, June 8, she had two con- versations with Production Manager Camodeca about the union election meeting. The first occurred near her machine at or around 8:30 a.m. She testified that Camo- deca came over and volunteered that he got a phone call from Colantonio who wanted to know who voted for Davidow but he did not tell him. She testified further that Camodeca came over later a second time and asked her why she believed that Davidow did so poorly at the 7 While Di Dinato was a witness for Respondent at the hearing, he was not questioned w ith regard to the above-cited encounters with Davidow and Smith election. According to Smith, when she told him that the presence of supervisors was a major reason, he apolo- gized and added, "If I knew that, I wouldn't have gone."' Camodeca and Colantonio denied that he, Ca- modeca, was asked to supply the names of the employees who voted for Davidow, and Camodeca further denied telling any employee that he had been so instructed. The next 5 or 6 weeks passed without incident. On July 17 Davidow was summoned to the office to see Su- pervisor Amano in connection with vests she had sewn with wrong size linings. The seams had to be ripped open and the vests resewn. The entire factory was closed during the last week in July and first week in August and resumed operations Monday, August 7. On August 10, Davidow was again summoned to the office concern- ing defective vests which she had sewn. She met with Colantonio, Amano, and Shop Chairman Di Dinato. Co- lantonio showed Davidow some of the defective vests which she had sewn where the seems were too narrow near the pleats. Davidow's offer to repair the vests was rejected by Colantonio who told her that customers were returning too many defective vests and she no longer had a job. Di Dinato and Davidow got together and immediately phoned Amaroso for help. Amaroso wanted to know whether Davidow had other problems at work and whether she had been previously warned. Davidow told Amaroso that the only other time she was called to the office about her work was on July 17 (previously noted). She explained however that her immediate supervisor on that occasion told her that the defective work was not her fault. She also denied that she had ever been warned about her work.9 Amaroso told her that he would try to visit the factory that day and resolve the matter. Amar- oso did not appear at the facility that day but a meeting was arranged for August 14. The August 14 meeting was attended by Davidow, Union Representatives Amaroso and Di Dinato, and Company Representatives Colantonio, Amano, and Ca- modeca, and Davidow's immediate supervisor, Dino Sofia, for part of the time. Amaroso pressed Colantonio to reconsider and give Davidow another chance which he refused to do. Amaroso also asked everyone at the meeting how many warnings had been give to Davidow. Everyone but Davidow agreed that the August 10 inci- dent involved at least the third warning given to her. Davidow maintained that she had never been warned before. Amaroso again asked Colantonio to give Davi- dow another chance but Colantonio remained adamant in his refusal to reinstate her. As soon as the meeting ended, Davidow told Amaroso that she wanted to go to arbitration. According to Davi- " It is not alleged nor is it contended that the presence of supervisors at the union meeting of June 7 violated Sec 8(a)1 I) of the Act. 9 This was disputed by both Quality Control Supervisor Amuno and Shop Chairman Di Dinato. According to them, Davidow was warned about her work on a number of occasions, both informally and frmally A formal warning is made in the presence of the shop chairman. The Re- spondent contends with corroboration from Di Dinauo that it has a long- standing rule which provides fr the discharge of employees upon three formal warnings fior poor workmanship and, consistent therewith. Davi- doe wBas discharged. BOTANY 5(X) 52q 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dow, Amaroso turned to Di Dinato and said, "she wants me to lie for her." Davidow insisted that she was telling the truth about the warnings. Amaroso told her that he would call her when the arbitration was arranged. For the next 2 weeks, Davidow phoned Amaroso nearly every day to press for arbitration. She then re- ceived a phone call from Alan Markovitz a union attor- ney and an appointment was made for Davidow to dis- cuss her case at his office on August 25. Davidow met with Markovitz as scheduled and told him the "whole story" including the alleged threats she received from Colantonio because of her election campaign. According to Markovitz he was sensitive to any potential conflict of interest and he therefore discussed the matter of repre- sentation fully with Davidow. He asked Davidow whether she believed that Amaroso was responsible for her discharge and she answered in the negative but thought that he was happy to be rid of her. Davidow wanted Markovitz to represent her at the arbitration al- though he gave her the opportunity to have her own lawyer. According to Markovitz, given the fact that Da- vidow did not believe that Amaroso was responsible for her discharge, and that Amaroso independently satisfied him that her campaign for business agent had nothing to do with the discharge, he, Markovitz, was convinced that there was no conflict of interest with the Union or Amaroso and he could represent her ably. He asked Da- vidow to look for witnesses who were willing to testify about Colantonio's threats in support of her case. On September 7, Markovitz met with Davidow again and reviewed the case in preparation of the arbitration hearing which was held on September 12. The arbitration hearing was conducted before Arbitra- tor 1. Herman Stern. All witnesses were sworn and Da- vidow was present throughout the entire proceeding. Davidow testified, inter alia, about her campaign flyer and the alleged threats by Colantonio including a threat to sue Davidow for slander. She contended at the arbi- tration that she was discharged because of the flyer and because she ran for business agent. She also submitted to the arbitrator a four-page typed memorandum which she prepared largely disputing responsibility for defective work and contending that she was discharged because she ran for union offic. (G.C. Exh. I(m), Exh. B). Fur- ther, she produced two witnesses, Madeline Smith and Kim Koo, who testified, inter alia, about the Company's disputed three formal warning system in support of Da- vidow's case. The Company's witnesses, Vice President Colantonio, Quality Control Supervisor Amano, and Foreman Sofia, testified, inter alia, about Davidow's work record and the warnings she allegedly received. In addition Shop Chair- man Di Dinato was required to testify and largely con- firmed the Company's contentions.' 0 "' There is a dispute as to who called Di Dinato as a witness. Davidow contends that Markovitz had Di Dinaro testify. Markovitz while conceding that his recollection of that hearing (almost 13 month.s earlier) was less than complete, does not believe that Di Dinato was his witness Joel Sternberg. Respondent's representative at the arbitration hearing, testified that he called Di Dinato. Di Dirlato's testimony was vague, but it is clear that Sternberg had previously interviewed him about the Company's three-warning rule and planned to use him as a witness. The General Counsel while conceding that the record on this point is unclear argues At some unspecified point during the arbitration hear- ing, Amaroso demanded to be heard. Davidow told Mar- kovitz that, if Amaroso testified, she would leave. Amar- oso did not testify as Markovitz motioned him to be quiet. On September 26, the arbitrator issued his award denying the grievance and finding that Respondent dis- charged Davidow for just cause. (G.C. Exh. (m), Exh. C.) In upholding the discharge, the arbitrator found on the "weight of the evidence" that Davidow had received three formal warnings for poor workmanship (id. at p. 6). He also rejected on "the weight of the credible evi- dence" Davidow's contention that her discharge was pri- marily motivated by personal animus resulting from her campaign flyer and her efforts to become business agent (id. at p. 8). Discussion and Conclusions A. Timeliness of the Charges Respondent in its amended answer and Motion for Summary Judgment contended that the 8(a)(1) allega- tions were time-barred under Section 10(b) of the Act. The acts and conduct alleged to be violative of Section 8(a)(l) occurred in June 1978. It is undisputed that the original charge naming Cohen as the Employer was timely filed on November 21, 1978. The amended charge which was filed on January 26, 1979, more than 6 months after the alleged unfair labor practices occurred was identical to the original, except that it named Botany as the Employer. While Respondent's brief is largely silent on the subject and thus appears to have abandoned its position vis-a-vis Section 10(b), I find that in any event the record clearly supports the timeliness of both the original and amended charge. The record discloses that, in late August 1975, Rapid- American Corporation transferred the assets and liabil- ities of its subsidiary, Cohen, to Rapid-American, Mens- wear, Inc., which created Botany 500 Division of Rapid- American, Menswear, Inc. (G.C. Exh. 9). The employees of Cohen appear to have been little affected by the change. Thus they continued to do substantially the same work under the same supervision at the same facility. In addition, Cohen's continued presence was reflected inter alia, on payroll checks and employment applications. (See G.C. Exhs. 10 and II.) It was with this backdrop that the original charge named Cohen as the Employer. It is noted that said origi- nal charge named Cohen's Personnel Director Mel Zim- merman as the employer representative to contact and that he continued in the same post for Botany. Zimmer- man was again named in the same manner in the amend- ed charge. Moreover it is noted that both the original and amended charges were sent by certified mail to the same address and the return receipts thereon were signed by the same individual. (See G.C. Exh.'s (a) and (c).) In these circumstances Respondent's contention that it was not provided actual and timely notice is without merit. for an inference to be drawn that Di Dinato was Markovitz' witness For reasons discussed infra. I find that Di Dinato was called to testify by Slernberg. BOTANY 00 531 The failure to originally name Botany was clearly only an error of misnomer, and as such is not fatal to the pleadings. " Accordingly Respondent's reliance on Sec- tion 10(b) as a defense to the 8(a)(1) allegations is hereby rejected. B. 8(a)(1) Al4legations The 8(a)(1) allegations all relate to statements made by either Colantonio or Comadeca on June 6, 7, and 8. In essence it is alleged that Colantonio unlawfully criticized Davidow on June 6 and 7 because of her campaign leaf- let which contained caricatures of Colantonio and Amar- oso with arms around one another and other unflattering material about the Company's and Union's bargaining re- lationship. Further, it is alleged that on June 8 Colan- tonio instructed Davidow not to prepare and distribute such campaign material again. Still further, it is alleged that Camodeca unlawfully created the impression of sur- veillance by telling employee Madeline Smith that Co- lantonio asked him who voted for Davidow for business agent. 1. Colantonio's alleged coercive statements Colantonio is alleged to have made his first coercive statement to Davidow on June 6 during the 10 a.m. cof- feebreak. Earlier that day Davidow openly distributed many copies of her campaign flyer both inside and out- side the company's facility. Davidow's testimony of her conversation with Colantonio later that morning at the 10 a.m. coffeebreak was as follows: He said, you know, I could have sued you for slan- der for this and I just said, why and he said, be- cause you spelled my name wrong. He said, you know, that's not very nice. You spelled my name wrong and you didn't paint a very nice picture and I could sue you for slander, so I said, I didn't mean any disrespect by spelling your name wrong and he said, that doesn't matter, I could still sue you for slander. Colantonio described this conversation somewhat dif- ferently. For example, ne testified that he requested Da- vidow to draw a better picture of him next time. Fur- ther, while Colantonio conceded that he told Davidow that he could sue her for slander, he completed that statement by adding "but, I won't." In either case, I find that Colantonio's remarks do not constitute a threat or are otherwise unlawfully coercive. It is not contended that Colantonio uttered a single word expressly criticizing the political message contained in the flyer. In these circumstances I am unpersuaded that there is a nexus between Colantonio's remarks and Davi- dow's intraunion activities or her politics otherwise. Rather the weight of the credible evidence tends to es- tablish that Colantonio's statement was directed to the misspelling of his name and the portrayal of him in cari- cature. Thus as testified to by Davidow, when she asked him why he could sue her for slander, he replied that she I See Peterson Con ruction Conpuan In . 1 06h NI RB 5( (1 953 misspelled his name and she did not paint a very nice picture of him. While such statements may not constitute "good-na- tured banter" as contended by Respondent, it does not follow that an inference must be drawn linking it to pro- tected concerted activity. On the basis of this record I find that the General Counsel has not established by the credible evidence that Colantonio threatened or other- wise unlawfully interfered with Davidow in violation of Section 8(a)(l) of the Act. Accordingly, I shall dismiss this allegation. It is further alleged that, on the following morning. June 7, shortly before the 8 a.m. starting time, Colan- tonio made certain statements to Davidow in the pres- ence of employee Madeline Smith, which tend to restrain and coerce employees with regard to protected activities, to wit, campaigning for union office and that Respondent thereby violated Section 8(a)(1). Davidow testified that she had just come out of the sixth floor ladies bathroom with Smith behind her, when they were confronted by Colantonio who was already standing there. According to Davidow, Colantonio start- ed "screaming" at her, demanding to know the nature of her business and ordered her to go to her work station on the fifth floor, claiming that she had no right to be in that area. Davidow replied that she spoke to her lawyer, and insisted that she had a right to remain in that area before working time. Colantonio, in turn stated that he too spoke to a lawyer who indicated otherwise. Accord- ing to Davidow, with corroboration from Smith, Colan- tonio ended this conversation by stating: I'm going to come back in five minutes and you had better be gone [to the fifth floor]. I ought to have you locked up for the damage you've done already. [Emphasis supplied.] Colantonio denied that he threatened to have Davi- dow locked up. According to him, it was a few minutes before the 8 a.m. starting time and "he wanted her back on her own floor so she can [sic] go to work." As was the case with Colantonio's alleged threat the previous day, there is no contention that he made any specific reference to Davidow's electioneering. Further, there is no evidence tending to establish that Colantonio knew that Davidow was campaigning on the sixth floor at that time. Thus the record does not clearly show that either Davidow or Smith had campaign material in their possession as they met Colantonio on leaving the ladies bathroom. While the issue vis-a-vis Colantonio's motivation in or- dering Davidow to go to her work station is not free from doubt, I am unpersuaded that the General Counsel has established his burden on the basis of credible evi- dence that Colantonio threatened Davidow as alleged. t2 12 While it is noted that Davidow's and Smith testimony as largely mutually corroborative as to content, it is also noted that their testimony appeared to be at odds, inter alia, with regard to the intensity of Colan- tonio' conduct Thus Davidow testified that Colantonio was already standing there at the time they came out of he ladies balhroomn aid he started "screaming " Smilh made no such reference to (Co/antonrio,c ream- Continued BTANY 500 53' 532 I3)t'CISIONS ()OF NATIONAL LAIOR RELAI()ONS BOARI) It is alleged that on June X, the day after the election, Colantonio further threatened Davidow in violation of Section 8(a)(1). Davidow testified in support thereof that Colanitonio approached her at the 10 a.m. coffeebreak and stated, "I don't want you to do this anymore. The first time it's funny, but after that, it's not so funny any- more .... " According to Davidow, she was confused by the remarks but rather than argue with Colantonio, she attempted to walk away, when Colantonio com- manded "don't walk away from me when I'm talking." Davidovw testified that Colantonio then repeated his ear- lier statement about it not being funny anymore. Colan- tonio denied making the statement. The Cieneral Counsel asserts that it is irrelevant that Colantonio made no reference to Davidow's protected activity given the totality of the circumstances including Colantonio's admission that he took personal offense at the way Darlvidow had portrayed him in the leaflet. However it is no less plausible to view Colantonio's ad- mission rolelv in terms of his displeasure at seeing himself in caricature. Even Davidow admitted to being some- what "confused" at Colantonio's remarks. In the absence of any other probative evidence clearly reflecting on the disputed statement, I find contrary to the General Coun- sel that it is significant to note that Colantonio uttered nothing about the pamphlet's political content or the election campaign otherwise. In these circumstances I find that the General Counsel has not established by a preponderance of the credible evidence that Colantonio admonished Davidow to refrain from engaging in pro- tected activity. Accordingly, I shall dismiss this allega- tion. 2. Creating the impression of surveillance Madeline Smith testified that on June 8, the day fol- lowing the intraunion election meeting, Supervisor Ca- modeca approached her at her work station and volun- teered that he had received a phone call from Colantonio who asked for the names of the employees who voted for Davidow but that he, Camodeca, did not give him the information. According to Smith, she in turn said nothing. Colantonio and Camodeca both deny any such conversation and Camodeca further denies making the alleged statement. In urging that Smith be credited over Colantonio and Camodeca, the General Counsel points out that Smith is still employed by Respondent and as such testified against her pecuniary interest. He contends that Smith had no motive to provide false testimony. While it has long been noted that an individual testifying against his or her pecuniary interest tends to support the reliability ing According o Sith, (lanrronio walked over to them and asked, "hal are ouI doing here, you have no right to he here." Further, if, as cintendcd bh Davirtdw, ('C olunriorir, \as screaming at her, it is noted that none f tile enlploees sho sw ere allegedly in close proxmity in the ladies haihroomn prosided corro boratise testimony with regard (to that milltcr, air hat )avidow was engaged in electioneering at hat time Under ll the circumstances, including my observation of the demeanor of the vtlnesses, I credit (Colontonrior dcnial that he threatened to have Duvrrdo, locked up of that individual as a witness, ] it is also noted with re- spect to the case at hand that there are certain factors which tend to militate against the reliability of the wit- less. The record discloses that Smith and Davidow began working for Respondent at about the same time and for a certain period they worked together as pick-stitch opera- tors. The record further discloses that they became good friends and were closely aligned as dissidents in the Union. In this regard it is noted inter alia, that Smith placed Davidow's name in nomination for business agent at the union meeting. While these factors by themselves do not serve as a basis for rejecting Smith's testimony, they do tend to establish that she was not merely disin- terested in the disposition of Davidow's case. Insofar as the statement itself, I find it highly unlikely that it was uttered. According to Smith not only did Ca- modeca disclose to her that Colantonio wanted him to name the employees who voted for Davidow but also that he, Camodeca, refused to divulge those names. It simply does not sound plausible that Camodeca would tell Smith that he refused to cooperate with Vice Presi- dent Colantonio. Even more incredible is that Smith as- serted that Camodeca apologized for attending the union meeting.' 4 In these circumstances I find that the state- ment ascribed to Camodeca to be violative of Section 8(a)(l) was not made. Accordingly, I shall dismiss this al- legation. C. Spielberg Defense The Board has long deferred to the arbitral process when "the proceedings appear to have been fair and reg- ular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act."'5 Respondent earlier moved for summary judgment principally on the basis that Davidow's arbitration comported favorably with the above-noted Spielberg standards. (G.C. Exh. I(m).) The General Counsel in opposition thereto argued that defer- ral was inappropriate largely on the basis that the arbi- tration was not fair and regular in that the interests of Davidow, a union dissident, were in substantial conflict with the union leadership. The General Counsel also contended that a key Re- spondent witness (Colantonio) made contradictory state- ments following the arbitration hearing which reflected adversely on his credibility in a critical area. Further, the General Counsel asserted that one of the allegations in the complaint, to wit, creating the impression of surveil- lance was not presented at the arbitration. Thus the Gen- ':' See. eg., deral Sruiileos Sink Div. o L'nurco Industries. Inc., 197 NLRB 489, 491 (1972); Gateway Transportation Co., Inc., 193 NLRB 47. 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305, fn. 2 (1961). 4 he record discloses that a large number of supervisors including Camodeca attended the union meeting and observed the election which wras by a show of hands. While there is therefore every indication that the supervisors kneew who voted ior Duvidow, the presence of supervisors at this meeting was not alleged r conterlded to he surveillance in iola- timol of Sec. 8(a)l . It is further noted that here are no allegalionls nor probative evidence tending iio show that any of the approximately 14 em- ployees h ,ho voted fr Davidow u ere thereafter coerced or otherwise dis- crinlated against b Respondctl fr s soting ( Spielberg Mu tlauJat-ruring (rnparry, upra at 1082 BOTANY 5(X) 5 3 eral Counsel argues that, as the arbitrator's award did not purport to deal with that allegation, deferral was in- appropriate for this additional reason. A still further point stressed by the General Counsel was that Davidow in running for union business agent challenged not only the Union, but also the relationship of Respondent to the Union. The General Counsel contends that a deferral to the arbitrator's award rather than consideration of Davi- dow's protected concerted activity and the circum- stances of her discharge independently would lead to a frustration of the policies and purposes of the Act. (G.C. Exh. (p).) As noted previously, the Board denied the motion on the basis that the issues raised therein can best be resolved by record testimony with leave for Respond- ent to raise the same issues at the hearing. Accordingly, the allegations in the complaint were fully litigated as well as Respondent's Spielberg defense. With regard to the merits vis-a-vis Davidow's dis- charge it is noted that, while the General Counsel's pres- entation was impressive, Respondent's defenses thereto were not without appeal. However on the basis of the entire record including the critical credibility resolutions. I am persuaded that deferral herein is consistent with the purposes and policies of the Act. A fortiori, I make no in- dependent finding regarding Davidow's discharge. For reasons perhaps most cogently expressed by the Supreme Court in the Steelworkers Triology'6 our nation- al labor policy has long favored arbitration as a vehicle for promoting industrial peace. Justice Douglas referred to the arbitration machinery under the collective-bar- gaining agreement as "the very heart of the system of in- dustrial government."' 7 He went on to further describe the arbitral process and its relationship to collective bar- gaining as follows: Arbitration is the means of solving the unforesee- able by molding a system of private law for all the problems which may arise and to provide for their solution in a way which will generally accord with the variant needs and desires of the parties. The processing of disputes through the grievance ma- chinery is actually a vehicle by which meaning and content are given to the collective bargaining agree- ment. Apart from matters that the parties specifically ex- clude, all of the questions on which the parties disagree must therefore come within the scope of the grievance and arbitration provisions of the collective agreement. The grievance procedure is, in other words, a part of the continuous collective- bargaining process. It, rather than a strike, is the terminal point of a disagreement. 8 In the case at hand the collective-bargaining agree- ment contains the kind of grievance-arbitration machin- ery cited hereinabove with arbitration as the terminal step (G.C. Exh. I(m), Exh. A, pp. 29-30). That the use of such grievance-arbitration machinery be encouraged is J6 See United Steelworkerm of America v. A,nerican Manufacturing Co.. 363 U.S. 564 (1960); United Steelworkers of .4merica v. Warrior & Gull Navigation Co., 363 U.S. 574 (1960); United Steelworkers ofm.4mnrita En- terprise Wheel & Car Corp.. 363 L! S. 593 (1961) 'I United Steeluorkers of America v. Warrior & Gulf Co., supra at 581 I Id further reflected by Section 203(d) of the Act. which states: Final adjustment by a method agreed upon by the parties is hereby declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement. 9 While the national labor policy clearly favors arbitra- tion, this by itself does not mandate any blind adherence to that forum. Thus the Board under Spielberg and its progeny has required that certain minimum standards be met before granting comity by deferring to the arbitra- tor's award. 20 In Kansas Meat Packers2' the Board refused to defer to the arbitral process noting inter alia, that the interest of the union and employees were in substantial conflict and concluded as follows: [T]hat it would be repugnant to the purposes of the Act to defer to arbitration in this case as to do so would relegate the Charging Parties to an arbitral process authored, administered and invoked entirely by parties hostile to their interest. In Kansas Meat Packing unlike the case at bar, the union business agent encouraged the company to dis- charge the employees involved. Further the discharged employees elected not to file grievances. Moreover the union concededly never investigated the circumstances of the discharge. In the instant case by comparison the record is devoid of any evidence tending to establish union complicity in Davidow's discharge. Even Davi- dow did not believe that the Union was responsible for the discharge. Moreover the Union representatives at- tempted to secure her reinstatement. When this failed the arbitration was not "invoked" contrary to Davidow's de- sires but rather was first initiated and then pressed for by Davidow herself. Thus, Davidow not only demanded ar- bitration but she phoned Union Business Agent Amaroso nearly every day in order to expedite it. In these circum- stances it is patently clear that Davidow voluntarily sub- mitted herself to final and binding arbitration. 22 The record discloses that Union Attorney Markovitz met with Davidow on two occasions to discuss fully the circumstances of her discharge in preparation for the ar- bitration. Davidow told Markovitz that she was dis- charged because of her campaign flyer and other activi- ties related to her efforts to become union business agent. 19 See also Gateway Coal Co. v United MineworAers of 4mereta. 414 U S 368, 377 (1973) z0 he Spielberg doctrine was later enlarged so that he arbitrator also had to consider the unfair labor practice issue and have ruled oIn il Rth eon Company, 140 NLRB 883 (1963). enforcement denied 26 F 2d 471 (Ist Cir 1964). See also Yourga Trucking. Incr. 19'7 NLRH 928 (19721. mnd the Board's recent decision in Suburban Motor Freight. In,. 247 NLRB No 2 (1980). extending the Spielherg doctrine still further by mposing on the party urging deferral the burden to prove that the diScriminat m .ai litigated before the arbitrator I2 I Ka sa .Sh t Packers. u Dil,on orf . rirstto Fod. Ir . 198 Nl RB 543. 544 (1972) 22 The General CoIulsel does not contend that this clement is iI dis. pute BOTANY 500 533 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD She also disclosed that she had consulted with another lawyer with regard to her campaign. Markovitz credibly testified that he was sensitive to any potential conflict of interest and questioned Davidow on whether she be- lieved that Amaroso was at all responsible for her dis- charge and whether she wanted to be represented by an- other lawyer to which she responded in the negative. Markovitz had also ascertained from Amaroso that he had nothing to do with Davidow's discharge and that in fact he had tried to have her reinstated. Armed with such information from Amaroso which was largely con- firmed by Davidow, Markovitz concluded that no con- flict with the Union existed and he agreed to Davidow's request that he represent her at the arbitration. Marko- vitz also helped Davidow secure witnesses for the hear- ing. The arbitration hearing was conducted on September 12, approximately I month after Davidow was dis- charged. All the witnesses testified under oath and Davi- dow was present for the entire proceeding. The record discloses that Davidow's protected concerted activity was fully aired at the hearing. Thus Davidow displayed the flyer which she had prepared and used in her cam- paign for union office and testified about Colantonio's threats to lock her up and sue her for slander. In addi- tion, much of this testimony was also in a four page typed statement which Davidow prepared and then sub- mitted to the arbitrator. Further, with Markovitz' assist- ance, she had two employee witnesses testify on her behalf. On the other hand Colantonio and Supervisors Amano and Sofia testified that Davidow was discharged in con- formity with the Company's long standing rule which provided for discharge upon three formal warnings for poor workmanship. In addition, Respondent's representa- tive at the hearing, Joel Sternberg called Di Dinato as a witness and he testified that he had knowledge of a number of informal warnings and complaints about Davi- dow's poor work .2 The arbitrator considered and rejected Davidow's as- sertion that Colantonio discharged her because of her campaign leaflet and her angry confrontations with him : The arbitrator noted that Di Dinato was "a most reluctant witness who resisted but was required to testify on this score." (G.C Exh (m). Exh C, p. 7 ) It is also noted that this was Di Dinaos first arbitration hearing. This may explain in part why he failed to tell Markovitz that Sternberg intended to call him as a witness. In any event the fact that Di Dinato and Davido disagreed on union politics does not by itself estab- lish that he testified untruthfully or that the arbitration was not fair and regular. This is particularly true herein, where I am persuaded that Davi- dow was represented by an attorney who was keenly sensitive to the set- ting and committed to fully support her at the arbitration. According to the General Counsel. Markovilz and not Sternberg called Di Dinato to tes- tify. As such. General Counsel asserts that Markovirz broke his promise to Davidoz that he would not call Di Dinuato as a witness. I find that this serious assertion is not supported by the credible testimony. Thus it ap- pears highly unlikely that Markovitz would honor Davidow' request not to call Amuroso but would defy her vis-a-vis Di Dinato It is noted that Davidow threatened to walk out when Amaroso demanded to be heard but he did not testiry because of Markovitz' efforts. On the other hand, she admittedly threatened no such action when Di Dinato was called to tes- tify While not decisive, it would appear that, if Markovitz or the Union were engaged in such duplicitious conduct. there should have been some 8(b)( 1 (A) allegations before me and this was not doie. in connection therewith. 24 In doing so the arbitrator found that "[t]he weight of the credible evidence . . . completely failed to sustain [Davidow] . . . in this record. " " 2 He further found on the basis of the credible evidence that the pattern, frequency, and nature of Davi- dow's poor workmanship was the real reason for her dis- charge. He relied in part on the fact that even Davidow admitted receiving two formal warnings and the evi- dence otherwise disclosed numerous informal warn- ings.' 2 According to the General Counsel, the arbitrator, who denied Davidow's grievance, is the permanent one under the collective-bargaining agreement and therefore there is a cloud of doubt regarding the fairness of the proceed- ing."2 7 Thus the General Counsel states that "this particu- lar arbitrator has a vested interest in seeing that the in- cumbent union officials remain in power so that he may be retained in subsequent contracts." He also noted that the same arbitrator had an arbitration previously over- turned in Pincus Brothers. Inc.,-Maxwell.' 2 I find in the circumstances of this case that none of the factors noted by the General Counsel tends to reflect on the arbitrator's impartiality or taints the arbitration pro- ceeding otherwise. First it is noted that there is no trace of fraud or collusion either alleged or disclosed by the record. Further there is nothing in the record tending to establish that Amaroso had or has anything to do with designating the permanent arbitrator. Insofar as General Counsel's reliance in Pincus Brothers, Inc., I find that this case is clearly distinguishable on the facts. Thus the arbi- trator erroneously concluded that writing and distribut- ing handbills therein did not constitute protected con- certed activity and therefore as a matter of law it was repugnant. In the instant case the same arbitrator dis- posed of discriminatory issues on the basis of credibility. The Board has consistently stated that it will not refuse to defer to an arbitrator's award simply because it would reach a different result. 29 Under all the circumstances I find that the connection drawn by the General Counsel, 24 As previously noted the General Counsel in opposing Respondent's Motion for Summary Judgment contended that it had newly discovered evidence. This consisted of Colanionio making an admissiin at the unem- ploy ment hearing that he threatened to sue Davidowe for slander which he denied at the earlier arbitration hearing. First. I do not credit Drvi- dow's statement that Colantonio denied stating that he could sue her for slander. If Colantonio denied making threats at the arbitration hearing the record herein tends to support him Thus I have previously credited Co- lantonio'r denial that he threatened to lock up Davidow. With regard to Colanionio's statement that he could sue Davidow for slander, he credibly testified that he added the words "hbut I won't." In an event for reasons presiously noted I found that the statement itself in the circumstances of this case did not rise to the level of a ilation within the meaning of Sec 8(a)( I). z. The arbitrator's decision itself clearly establishes that the issue of discrimination was litigated before him See Suburban Motor Freight,. Inc.. supru ' I tIhe case at hand. Davidow denied receiving any warnings. fornal or otherwise. I find that this conflict with her testimony in the earlier arbitration hearing tends to cast further doubt on her overall credibility 21 The General Counsel has also acknowledged that the arbitrator is "competent and respected." (G C Exh. (p). p 7.) u" 241 NLRB 805 (1979); see also Pincu Broiher, lIc. ..- M.axell, 237 NL.RH 1063 (1978). z2R See Ifawuiin Iluuling Srv'ic. Ltd , 219 NLRB 765. 766 (1975); Ter- minal rnsport Company. Ir,., 185 NIRi 672. 673 (1970) BOH()TANY 5X00 535 without more, is too remote to forfeit the arbitration when in all other respects it was fair and regular and the award otherwise is not repugnant to the Act.30 In short, the record discloses that Davidow insisted on having an expedited arbitration hearing and she was so accommodated and that she was duly represented therein by Union Attorney Markovitz whom she had requested. Further, Markovitz encouraged and assisted Davidow in securing witnesses and helped her otherwise prepare for the arbitration. Insofar as the arbitration proceeding itself, Davidow was provided a full opportunity and had litigated not only the circumstances of her discharge but matters relative to her protected concerted activity. In addition she submitted her own position paper to the ar- bitrator. In these circumstances the record is strong and convincing that Davidow was accorded a full and fair hearing. :"' Cf. Brown Company, Brown Company. Livingston Graham Division: et al., 243 NLRB N 100 (1979). See also Terminal Transport Company, Inc.. upra at 673. and Board Member Jenkins' dissent therein on the basis, inter alia. that the Charging Party, unlike the case at hand, objected to the arbitration panel. On the basis of the foregoing and the entire record, I find that deferral is appropriate under the Spielberg of cases and is consistent with our national labor policy. Accordingly, I shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent did not engage in the unfair labor prac- tices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 3 Th. cmplaint is dismissed in its entirety. '" 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 he deemed waived for all purposes BOTANY 5(y) 535