Crawford Clothes, Inc.

National Labor Relations Board - Board Decisions

Mar 3, 1959

123 N.L.R.B. 9 (N.L.R.B. 1959)

CRAWFORD CLOTHES, INC. 9
Crawford Clothes, Inc. and John W. Lindsay
Harlem Labor Union, Inc. and its Agent William E. Ferman
and John W. Lindsay. Cases Nos. 2-CA-5936 and 2-CB-2247.
March 3, 1959
DECISION AND ORDER
On December 24,1958, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceedings, finding that
the Respondents had not engaged in any unfair labor practices and
recommending that the consolidated complaints be dismissed in their
entirety, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in these
proceedings, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaints.]
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with these cases to a three-member panel
[Members Bean, Jenkins, and Fanning].
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served in each of the above-entitled cases,
an order consolidating said cases, a complaint and notice of hearing thereon having
been issued and served by the General Counsel of the National Labor Relations
Board, and answers having been filed by each of the above-named Respondents,
a heating involving allegations of unfair labor practices in violation of Section
8(a)(1) and (3) and 8(b) (1)(A) and (2) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act, was held in New York, New York,
on November 12 and 13, 1958, before the duly designated Trial Examiner.
At the hearing all parties were represented and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, to introduce evidence pertinent
to the issues, to argue orally upon the record, and to file briefs and proposed findings
of fact and conclusions of law. Arguments were waived. Briefs from all parties
have been received and considered.
On December 3, 1958, there was received from counsel for the Respondent Com-
pany a motion, with indication that copies had been served upon the other parties,
to correct certain minor typographical errors in the official transcript. No objection
having been received, said motion is granted and is hereby made a part of the record.
At the opening of the hearing counsel for the Respondent Union and its agent,
William E. Ferman, moved that the complaint have stricken from it the name of
Ferman as a Respondent, since this individual had died. Without objection this
motion was granted.
123 NLRB No. 8.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT COMPANY
Crawford Clothes, Inc., is a New York corporation with principal office and
place of business in Long Island City, New York, New York. It operates various
plants, retail stores, places of business , warehouses , and other facilities in the States
of New York and New Jersey , including two retail stores located at 115 West 125th
Street and 201 West 125th Street , New York City . It is engaged in the manufacture,
sale, and distribution of clothing , wearing apparel , and related products. Only the
two stores on 125th Street cited above are involved in these proceedings.
During the year before issuance of the complaint Crawford caused to be purchased,
transferred , and delivered to its Long Island plant goods and materials valued at
more than $ 1,000,000, of which total materials valued at more than $500,000
were transported to this plant in interstate commerce, directly from States other
than the State of New York.
During the same period Crawford 's gross volume of business in its retail stores
exceeded $ 500,000.
The Respondent Crawford is engaged in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Harlem Labor Union, Inc., is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The one major issue in this case arises from the discharge by Crawford of a
salesman, John W. Lindsay , on April 26 , 1958. The questions are whether or not
the preponderance of evidence supports either of General Counsel 's conjunctive
contentions that the Union caused the Company to fire Lindsay , and that the Company
did fire him , in violation of Section 8(a) (3) of the Act: (1) "because said employee
was not a member of the Union ," and (2 ) "because Crawford wished to furnish
employment for a member of the Union."
As to certain basic, relevant facts there is no dispute : ( 1) Lindsay, employed as
a salesman at one or the other of Crawford's two 125th Street stores , referred
to above, continuously since 1947, was fired without previous notice on April 26,
1958; ( 2) another salesman, Curley Wynters, also employed at one or the other
of the same two stores since 1946 , except for an occasional economic layoff, was
not fired on April 26, and was still employed at the time of the hearing ; ( 3) Lindsay
had been a member of the Respondent Union from early in his employment until
either 1954 or 1955, but had not been a member for some years at the time of his
discharge in 1958; ( 4) Wynters since his employment in 1946 has been and has
continued to be a member of the Union ; ( 5) there existed at the time of Lindsay's
discharge no contractual agreement between the Respondents requiring member-
ship in the Union as a condition of employment ; ( 6) neither Respondent ever told
Lindsay ( according to his own testimony ) that he must be a union member to
retain his employment; (7) although he had not been a union member since 1954
or 1955 Lindsay had never been laid off for any reason; and (8 ) although he had
been a union member during the same period , Wynters had been laid off for
economic reasons.
The foregoing facts appear to be dubious support for General Counsel 's claim of
illegal discrimination against Lindsay.
Other matters , concerning which testimony is in dispute , as well as the Company's
claims and supporting testimony as to its reasons for Lindsay 's discharge , will be
set out in the next section.
A. Lindsay 's discharge
The record contains no evidence of probative weight to support a finding that
the Union , or any of its agents, at any time or in any way ever communicated any
desire to the Respondent Company that it dismiss Lindsay, for any reason. Nor is
there any credible evidence from which it might reasonably be inferred that the
Union had such desire. Lindsay 's testimony , quoted, is unequivocal:
Q. You never had any conversations with Mr. Ferman or anyone connected
with the union concerning your job at Crawfords , did you?
A. No.
CRAWFORD CLOTHES, INC. 11
Q. None whatsoever?
A. None.
General Counsel placed in evidence an affidavit executed by Ferman in June 1958,
for a Board agent, which in part states:
I did not tell Crawford to discharge Lindsay and have had no conversations
with the Company in reference to Lindsay.
This sworn statement is corroborated by the Respondent Company's personnel
director , David Rugoff, who flatly denied that he had ever met Ferman or had ever
had any communication or request from the Union with respect to Lindsay.
The only testimony from which , if credited , it might be inferred that Ferman
or the Union was instrumental in causing Lindsay's discharge is that of the former
employee himself . It is his claim that after he had been fired by his store manager
upon orders from Rugoff , he went to see the personnel manager to find out why.
His testimony as to this interview is as follows:
He (Rugoff ) said; "The first thing happened , I got a call from the Harlem
Labor Union , from this Mr. Ferman , and he started chewing my head off and
I didn 't know anything about him . The next thing I know I was to have a
luncheon date with Mr. Ferman."
Q. A luncheon date?
A. Yes. "Then that was off , and then the next thing I know the Harlem
Labor Union and the company lawyers was to have the meeting."
Q. Did he say anything else?
A. Then he said , "They would have a meeting ." So I asked him, "What
was it about?" He said, "The decision was that we had looked and tried to
find out whether you belonged to any Union. We couldn't find any union that
you belonged to. Being that Curley was a union member , therefore we would
have to let you go." I asked him , "How is it if Curley is a union member, why
would I have to go ? I have been there all this time without being a member.
Why didn't they fire me before?" He said, "I don't know . All I do is take
orders. My orders was to let you go and Curley was to take your place," and
that's as far as he went.
As a witness Rugoff denied Lindsay's version of this interview , and on the con-
trary claimed that Lindsay insistently accused him of firing him because he was not
a union member, but that he as insistently denied it.
Having observed both witnesses as they testified , and because of other circum-
stances as to which there is no dispute , the Trial Examiner cannot accept Lindsay's
account of this interview as credible . It strains credulity to believe that the personnel
manager of this large concern would have told an employee, "All I do is take orders."
And one would have to infer , in the absence of any other evidence and of any con-
tractual relationship , that in some fashion the Harlem Labor Union , Inc., exercised
control over Crawford 's hiring policies and practices.
In short , the Trial Examiner considers the credible evidence to be insufficient to
support the allegation that Lindsay was discharged because he was not a union
member.
Turning to the conjunctive or alternate contention : that he was discharged "because
Crawford wished to furnish employment for a member of the Union."
Basic facts as to which there is no dispute provide scant foundation for such a
finding. Curley Wynters (the member of the Union involved in the contention)
had been employed by Crawford over a longer period than Lindsay, and already
had "employment " at the time Lindsay was let go. This is not a case of there
being a single job, from which one employee was fired in order to give employment
to another applicant. The situation in its simplicity was merely that of two
salesmen being employed over a period of many years , and on April 26, 1958, one
of them was let go. There is no evidence that anyone has been hired to take the
place of Lindsay.
The fact that Wynters, since Lindsay's discharge, has received an increase in pay
equal to that which Lindsay was getting does not alter the employment status or
the employment issue.
Rugoff's unrefuted testimony that for economic reasons he , and he alone , decided
to reduce the salesman force at these two stores may not be casually dismissed as
unworthy of belief. That it has as a fact been reduced is not challenged by
General Counsel . Rugoff's further claim that he chose to let Lindsay go on the
basis of relative ability and seniority involves two factors: judgment and a demon-
strable fact . As to the fact of seniority, there is no dispute that Lindsay had less
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than Wynters. As to the matter of ability, the Trial Examiner is not of the opinion
that General Counsel established that Rugoff's decision to keep Wynters and let
Lindsay go was so arbitrary and capricious as to warrant the inference that the
real reason must have been his preference to keep a union member in employment.
In summary, the Trial Examiner concludes and finds that the preponderance of
credible evidence does not sustain the allegations of the complaint as to the dis-
charge of John W. Lindsay.'
Upon the basis of the foregoing findings and conclusions and upon the entire
record in the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Harlem Labor Union , Inc., is a labor organization within the meaning of
Section 2 (5) of the Act.
2. Crawford Clothes, Inc., is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. Crawford Clothes, Inc., has not engaged in unfair labor practices within the
meaning of Section 8 (a) (1) and (3) of the Act.
4. Harlem Labor Union, Inc., has not engaged in unfair labor practices within
the meaning of Section 8(b) (1) (A) and (2 ) of the Act.
[Recommendations omitted from publication.]
'The Trial Examiner does not ignore certain statements in Ferman's affidavit relative
to his admission that he asked the Company to give Wynters "full time" work. But
from this mere fact it does not without doubt follow that the Company yielded to the
request by discharging Lindsay. The affidavit fails to fix the time of such request with
accuracy, and apparently places the first request as many months before Lindsay was
laid off. From Wynters' testimony it appears that he had been working full time for a
month or more before the discharge. In any event, even if it might be reasonably inferred
that Wynters benefited because of Ferman's intercession for him, the Trial Examiner
does not believe that this fact would support the claim that Lindsay was deprived of alt
employment because he was not a union member and Wynters was.
Morrison-Knudsen Company, Inc., Walsh Construction Com-
pany, and Perini-Quebec, Inc., d/b/a Robinson Bay Lock
Constructors, A Joint Venture and Morrison-Knudsen Com-
pany, Inc., B. Perini & Sons, Inc., Walsh Construction Com-
pany and Utah Construction Company, A Joint Venture
and Morrison-Knudsen Company, Inc. and Selby Drilling
Corp. and Herald H. Blum . Cases Nos. 3-CA-972, 3-CA-973,.
3-CA-979, and 3-CA-994. March 4, 1959
DECISION AND ORDER
On March 6,1957, Trial Examiner George Downing issued his Inter-
mediate Report in the above-entitled proceedings, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that Respondents had
not engaged in certain other unfair labor practices alleged in the com-
plaint, recommended dismissal of those allegations, and further reconi-
123 NLRB No. 12.