Court Casuals

National Labor Relations Board - Board DecisionsMay 7, 1975

217 N.L.R.B. 853 (N.L.R.B. 1975)

OSI OF CALIF. d/b/a COURT CASUALS 853 OSI of California d/b/a Court Casuals and Southern California Joint Board Amalgamated Clothing Workers of America, AFL-CIO, Petitioner. Case 31-RC-2851 May 7, 1975 DECISION AND ORDER DIRECTING HEARING BY MEMBERS JENKINS, KENNEDY, AND PENELLO Pursuant to a Stipulation for Certification Upon Consent Election executed by the parties and approved by the Regional Director for Region 31 on August 5, 1974, an election by secret ballot was conducted in the above-entitled proceeding on August 29, 1974, under the direction and supervision of the Regional Director. Upon the conclusion of the election, a tally of ballots was furnished the parties in accordance with the Na- tional Labor Relations Board's Rules and Regulations, Series 8, as amended. The tally of ballots shows that there was approxi- mately 120 eligible voters and that 114 ballots were cast of which 54 were for and 60 against Petitioner, and 3 were void. No ballots were challenged. On September 6, 1974, the Petitioner filed timely objections to conduct affecting the results of the elec- tion. The Regional Director completed an investigation of the objections and on February 13, 1975, issued and served on the parties his Report on Objections. In his report, the Regional Director recommended that Ob- jections 3, 4, 5, 7, and 8 be overruled in their entirety, and that a hearing be held to resolve Objections 1, 2, 6, and 9. Thereafter, Employer filed timely exceptions to that portion of the Regional Director's report which recommended a hearing on Objections 1, 2, 6, and 9. 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 duly considered the objections, the Regional Director's report, and the Employer's excep- tions and brief, and hereby adopts the Regional Direc- tor's report insofar as it recommends that Objections 3, 4, 5, 7, and 8 be overruled, a recommendation to which no exception has been taken. While we also agree with the Regional Director's recommendation that a hear- ing be held to resolve issues raised by Objections 1, 2, and 6,1 we do not adopt this recommendation that a 1 In its Objection 6, Petitioner alleges that the Employer's president first announced that his door was open to discuss and handle employee griev- ances after the filing of the petition in the instant case, thereby creating an inference that the Employer would rectify their grievances if the employees did not vote for the Union. The Regional Director noted that there is conflicting testimony regarding the extent of the Employer's prior practice hearing be held on Objection 9. Instead, for the reasons set forth below, we shall overrule Objection 9 in its entirety. Objection 9 concerns an alleged incident involving the Employer's president, John Calvert, and employee Jose Guadalupe Vega. Petitioner alleges that, during an employee lunch period 2 or 3 days before the election, Calvert approached Vega while the latter was convers- ing with a union representative at the Employer's lunch truck parked outside the Employer's plant. Two union representatives claim that, upon seeing Calvert, Vega stopped talking and began walking toward one of the Employer's buildings. These union representatives fur- ther claim that as Vega was entering the building, Cal- vert shook his forger at Vega and told him that he, Calvert, wanted to see him, Vega, in the office immedi- ately. Both agents, contend that between 10 and 15 other employees witnessed this incident. According to the two agents, Vega returned outside about 7 minutes later and told them that Calvert has asked him why he had to talk to union people and how the employees felt about the Union, and that Calvert had informed him that he knew Vega had spoken out at the union meet- ings and warned him not to speak out against the Com- pany. The Regional Director noted that both Vega and Calvert deny these events as alleged and that no em- ployee interviewed in the course of the investigation saw the events as described by the union representa- tives. However, the Regional Director concluded that there is conflicting testimony regarding this incident and that the Petitioner, by its own statements, has es- tablished a prima facie case. He further concluded that the factual dispute as to whether Calvert engaged in the conduct alleged can best be resolved by a hearing. We disagree. We find, in agreement with the Employer's conten- tion, that Petitioner's Objection 9 is not supported by sufficient probative evidence to warrant a hearing. Al- though there is conflict in the testimony as to what Vega told the union representatives, the resolution of such conflict in favor of the Petitioner's witnesses would merely establish that Vega gave them the ac- count they allege he related and would not afford a sufficient basis to establish that Calvert in fact ques- tioned and threatened Vega concerning the exercise of his protected activities! We therefore believe that the of soliciting employee grievances, and he recommended that a hearing be held in order to resolve the question as to whether the Employer engaged in unprecedented solicitation of employee grievances. While we agree that a hearing is necessary, we shall not limit the inquiry to that issue alone. Rather, we shall order that the hearing be held with respect to all issues raised in Objection 6, since we believe that an inquiry as to all the relevant circumstances and issues is necessary in order to determine what effect, if any, the announcements had on the freedom of choice of the employees in the election. 2 Bostttch, Division of Textron, Inc., 210 NLRB 83 (1974) 217 NLRB No. 150 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearsay account offered by Petitioner's agents does not raise any substantial and material factual issue that requires a hearing. Accordingly, Petitioner's Objection 9 is hereby overruled. ORDER It is hereby ordered that , pursuant to Section 102.69(f) of the Board 's Rules and Regulations, Series 8, as amended , a hearing be held before a duly desig- nated Hearing Officer for the purpose - of receiving evi- dence with respect to all the issues raised in Petitioner's Objections 1, 2, and 6. IT IS FURTHER ORDERED -that the ,Hearing Officer desig- nated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objections. Within 10 days from the date of issuance of such report , any party may file with the Board in Washington , D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director . If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS ALSO FURTHER ORDERED that the above-entitled mat- ter be, and it hereby is, referred to the Regional Direc- tor for Region 31 for the, purpose of conducting said hearing , and that the Regional Director be, and he hereby is, authorized to issue notice thereof.