Myers Bros., Inc.

National Labor Relations Board - Board Decisions

Jun 16, 1975

218 N.L.R.B. 441 (N.L.R.B. 1975)

MYERS BROS., INC. 441
Myers Bros., Inc. and Chicago Joint Board , Amalga-
mated Clothing Workers of America , AFL-CIO.
Cases 38-CA-2063 and 38-RC-1566
June 16, 1975
DECISION, ORDER, AND
CERTIFICATION OF REPRESENTATIVE
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On February 12, 1975, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief. The Petitioner
filed exceptions and a supporting brief and a brief in
partial support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the' exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith and to adopt his
recommended Order.
The Administrative Law Judge concluded that the
challenge to the ballot of John Kiss be sustained and
that the objections to the election held on June 18,
1974, be overruled.' No exceptions have been filed to
these findings and they are hereby' adopted. Nor
have exceptions been filed to the dismissal of the
8(a)(1) and (3) allegations of the complaint, and we
shall therefore dismiss the complaint.
However, the Respondent has filed an exception to
the Administrative Law Judge's finding that Mary
Dudley was ineligible to vote in the election. For the
reasons given below, we agree that Dudley was not
eligible to vote.
Mary Dudley was hired on May 25, 1974, the last
day of the eligibility period. Her application for
employment recites that she is a high school graduate
with special skills in operating office equipment. At
the time of her employment with Respondent,
Dudley was gainfully employed as a secretary, a job
which she continued while working for Respondent.
Her application also states that Respondent's first-
floor manager is Dudley's daughter-in-law.
Dudley was introduced to the alterations room
employees as an employee who would assist them
when extra help was needed. She was scheduled to
work several afternoons a week beginning at 3 p.m.,
but her hours were subsequently rescheduled to
commence at 3:30, as she did not leave her
secretarial job until 3 p.m.
On her first day of employment , May 25, Dudley
worked 6 hours . She returned on May 29 for 1-1/2
hours and worked again on May 31 for 2 hours.
Although scheduled to work , Dudley did not work at
all from June 1 until June 12, as she was performing
services for a charity in no way connected with
Respondent. From June 12 until the date of the
election 6 days later , Dudley worked a total of 9
hours. After the election, she worked on' a more
substantial and regular part-time basis until approxi-
mately the middle of September . At that time Dudley
became involved in another outside activity whose
schedule had not been determined , and she was
unable to arrange a working schedule with Respon-
dent . Since that time, Dudley has not been actively
employed by Respondent.
Considering all the circumstances , we are of the
opinion that Dudley worked on too casual and
sporadic a basis from the date of her hire until the
date of the election for us to find that she had a
sufficient community of interest with other unit
employees to be included in the same unit with them.
The fact that Dudley worked on a more regular basis
after the election does not call for a different
conclusion, because , apart from the fact that the
period preceeding the election is the critical one, it
was apparent after the election that her ballot may
have been a determinative factor in its outcome, and
the assignment of additional hours to her lends itself
to conflicting interpretations . Therefore, we sustain
the challenge to her ballot and find that she was
ineligible to vote in the election.
Since we have sustained the challenges to the
ballots of Kiss and Dudley , the results of the election
are now conclusive, and we find it unnecessary to
consider the remaining challenges.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, and
hereby orders that the complaint in Case 38-CA-
2063 be, and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the Union's objections
to the election conducted in Case 38-RC-1566 on
June 18, 1974, be, and they hereby are, overruled.
As the Union has received a majority of the valid
ballots cast in the election conducted in Case 38-
i The election was conducted pursuant to a Stipulation for Certification
Upon Consent Election . The tally was : three for, and none against, the
218 NLRB No. 75
Petitioner: there were four challenged ballots, including those of Kiss and
Dudley.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RC-1566 on June 18, 1974, the Board will issue a
Certification of Representative.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Chicago Joint Board,
Amalgamated Clothing Workers of America, AFL-
CIO, and that, pursuant to Section 9(a) of the Act,
the foregoing labor organization is_ the exclusive
representative of all the employees in the following
appropriate unit for the purposes of collective
bargaining with respect to rates of pay, hours, of
employment, and other terms and conditions of
employment:
All full and regular part time alteration room
employees at the Employer's store at 340 North
Water, Decatur, Illinois, but excluding all office
clerical employees, professional employees,
guards and supervisors as defined in the Act and
all other employees.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
August 8, 1974, the complaint in Case 38-CA-2063 issued
pursuant to a charge filed on July 15, 1974, by Chicago
Joint Board, Amalgamated Clothing Workers of America,
AFL-CIO, referred to herein as the Union. The complaint
alleges that Respondent violated Section 8(a)(1) and (3) of
the Act by interrogation and other coercive statements and
by discharging John Kiss. In its answer, Respondent denies
the commission of any unfair labor practices.
On May 6, 1974, the Union filed a representation
petition in Case 38-RC-1566, and on June 3, 1974, a
Stipulation for- Certification Upon Consent Election was
approved. On June 18, 1974, an election was conducted in
a unit of all full-time and regular part-time alteration room
employees at the Employer's Decatur, Illinois, store, which
resulted in a vote of three votes for the Union, none
against, and four challenged ballots. On June 18, 1974,
objections to conduct affecting the results of the election
were filed by the Union. On August 20, 1974, the Regional
Director for Region 13 issued his Report on Objections
and Challenges, Order Authorizing Consolidation of Cases
and Direction of Hearing, in which he found that the
objections included allegations which were the subject of
the complaint in Case 38-CA-2063 and that the objections
and challenges could best be resolved on the basis of
evidence developed at a hearing. He ordered that the
matter be referred to the Officer-in-Charge for Subregion
38 for purposes of arranging for a consolidated hearing in
the two cases and that, after decision by an Administrative
Law Judge, Case 38-RC-1566 be transferred to and
I The transcript of the hearing for November 19 and 20 contains
numerous errors and omissions , particularly in colloquy of counsel and in
my statements and rulings. In the absence of any motion to correct the
continued before the Board for further proceedings.
Thereafter, on August 22, 1974, the Officer-in-Charge
issued his order consolidating cases.
A hearing in the consolidated cases was held before me
on October 22 and 23 and November 19 and 20, 1974.1 At
the conclusion of the hearing oral argument was waived
and the parties were given leave to file briefs, which have
been received from Respondent and the Union. The Union
has also filed posthearing motions to sever the cases and to
reopen the record in Case 38-CA-2063. These motions are
disposed of in the body of the decision below.
Upon the entire record in this case including my
observation of the witnesses and their demeanor I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation , has an office and
place of business located in Decatur, Illinois, where it is
engaged in the retail sale of consumer goods . During the
12-month 'period preceding issuance of the complaint its
gross volume of business was in excess of $500,000, and it
purchased and received directly from points outside
Illinois goods valued in excess of $50,000. I find that
Respondent is an employer engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
At the hearing all the direct evidence to support,`the
allegations of the complaint came from the testimony of
John Kiss, the alleged discriminates in this case. On direct
examination Kiss testified that, although he was made a
supervisor at the time of his hire in 1971, he was relieved of
supervisory responsibility in October or November 1972,
and worked thereafter as a tailor in the alterations
department at Respondent's Decatur store with responsi-
bility only for the performance of his own work. According
to Kiss, after a union organizing campaign began in early
1974,- he had several conversations with responsible
officials of Respondent in which damaging statements
supporting the complaint were made. He testified that:
(a) On May 7, 1974, he was' called to a meeting at
Respondent's Springfield, Illinois, store, where in the
presence of Decatur Store Manager Isom, Respondent's
vice president, Lewis Myers, asked him if he knew
anything about union organizing efforts . He disclaimed
any knowledge, and Myers told him management wanted
him to find out who had signed cards and who was talking
about the Union. Myers said, "You are a supervisor .. .
and I want you to -report." He replied, "Well, I'm not a
transcript I have not undertaken to do so on my own motion and believe
that the transcript of the testimony of the witnesses is sufficiently accurate
to permit the Board to carry out its statutory function.
MYERS BROS., INC. 443
supervisor, you know, and I don't want trouble for myself'
because Myers had said, "It's against the law to do it."
(b) On or about May 14 , Decatur Store Manager Isom
called Kiss to his office where Isom told Kiss that he
wanted to transfer Fran Dobney out of the alterations
department to the lingerie department where she originally
had worked "because I know she's doing something about
the Union ." Kiss responded, "I'm not a supervisor . . . you
do the best you can on the store," and advised Isom that it
would be difficult to replace Dobney in the alterations
department.
(c) On or about May 20 , Isom called Kiss to his office
and told him that he wanted to transfer Dee Thompson
from the alterations department to a selling job because he
was "scared she going to be involved with the Union."
(d) On May 24, Isom called Kiss to Isom's office and in
the presence of Assistant Store Manager Flynn told Kiss
that he called him in because he wanted him to know that
he had hired Flynn's wife and Nancy Naron, wife of the
store maintenance man, to work as part-time employees in
the alterations department , that he had to put them on the
payroll that day because otherwise they would not be
eligible to vote in the representation election , and that both
would vote to keep out the Union.
(e) On June 18 , the day of the representation election,
Kiss was called to Isom 's office where an attorney asked
Kiss if he knew who was going to vote for the Union and
who was going to vote for the store . Kiss replied that he
didn't know . The attorney stated that no one had to vote if
they didn't want to, and that Kiss could vote if he wanted
to.
(f) On or about June 20, after Kiss had cast a challenged
ballot in the election ,2 Isom called Kiss to his office and in
Flynn's presence Isom told Kiss that he wanted Kiss to tell
him how he had voted , because if he had voted for the
store, Respondent would fight to have it counted and if he
had voted for the Union they would fight against counting
it. Kiss replied that it was a secret vote and he would not
tell Isom how he voted, adding, "If you want to destroy it
you destroy it, but don't you feel sorry."
(g) On July 11 close to quitting time Isom called Kiss to
his office and in Flynn 's presence told him he hated to do it
but had to tell Kiss that Respondent could keep him no
longer and was dissatisfied with him. Kiss asked if any
customer had complained , and Isom replied that his sewing
was excellent , but that Kiss should have known what the
people in the alterations department were doing and
talking about and he should have reported it to manage-
ment but never did . Kiss accused Isom of being angry
because he had voted and said he was not going to spy for
Respondent and would go fmd a job where he did not have
to spy. As he left he told Isom he had opened the door for
him, and "if anybody is going to be questioning me I'm
going to . . . testify , and I'm going to tell your dirty
business."
Other than Kiss' testimony the only evidence offered to
support the complaint was evidence to support the
contention that Kiss was not a supervisor, to show that
employees Jane Flynn and Mary Dudley were relatives of
management and were hired without prior alterations
2 Kiss' ballot was challenged by the Board agent as his name was not on
the eligibility list.
experience on the last day of the eligibility period to work
part-time in the alterations department, and to show that
Thompson was transferred out of the alterations room and
Dobney was asked to transfer around the time that Kiss
attributed to Isom the statements set forth in (b) and (c)
above.
On cross-examination of Kiss Respondent sought to
elicit from Kiss the nature and extent of his contacts with
union representatives from the beginning of the union
organizing campaign until the hearing in this case. Kiss
testified that Union Representative Weiner had spoken to
him once briefly in the store in February or March 1974,
and that Kiss had no further contact with any union
representative or attorney until around August 1, 1974,
after his discharge, when he called Weiner in Chicago to
inquire whether Weiner could assist him in finding another
job. Kiss testified that at that time Weiner said he would
try to help him fmd a job and asked him to come to
Chicago the next week . According to Kiss, when he went to
Chicago he first met with Weiner and Union Attorney
Willis and then was taken to the office of an unidentified
union official who told him in Willis' presence that the
Union would help him, that it would pay him what he had
earned from Respondent each week , and that he would
have to repay the money if he received backpay from
Respondent . Kiss testified that he went on the union
payroll on August 22 and that he was to help out with
union picketing at Decatur at Respondent 's store and
Goldblatt's store. According to Kiss, he took care of
Goldblatt's and Union Representative Bill Smith took care
of the picketing at Respondent 's store. Kiss testified that
the only thing he was supposed to do was picket , and that
the union representatives said they had to have a picket
and were happy to have him because they didn 't have to
pay hotel or motel bills.
Kiss identified two affidavits, one given to Board Agent
Kessler on July 2 in connection with the investigation of
the objections and challenges and the other given on July
25 in connection with the investigation of the charge.
Denying that he had any contact with any union
representative or attorney until after both statements were
given, Kiss testified that on July 1 Kessler called him at his
home and made an appointment to interview him there on
the evening of July 2. At that time, he testified, he gave his
statement answering questions asked by Kessler which
indicated that she had knowledge of his meetings and
conversations with Myers and Isom before she spoke with
him.
Kiss testified further that Kessler called him on July 24
to arrange for another meeting. According to Kiss, she said
she would like to talk to him when it was convenient for
him, and he replied that he had plenty of time and could
talk to her whenever she wanted, telling her that he had
been discharged . Kiss testified that she said she was
surprised and was sorry.
Subsequently Kiss testified that he first learned that a
charge had been filed alleging that his discharge was
unlawful when Kessler interviewed him on July 25 and that
at that time she said something about going to a hearing
and getting backpay. When he was reminded that he had
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Kessler had said she was surprised to hear of
his discharge on July 24, Kiss testified that he didn't
remember if she said the Union had filed a charge or not,
but that she did mention a hearing and backpay. He then
testified that he believed he first learned the Union had
filed a charge when he spoke to Weiner in Chicago around
August 1. He testified that, when he told Weiner he had
been fired and was looking for a job, Weiner said the
Union had information that he had been fired and had
filed a charge.
On redirect examination, Kiss was again asked about his
contacts' with union representatives between February and
August. Kiss then testified that, following his February or
March conversation with Weiner, he next spoke to Weiner
on July 2 when Weiner called him at his home and asked
Kiss to meet him at a motel. Kiss met Weiner and after
speaking together for a while, Weiner asked Kiss if he
would like to give a statement. Kiss said he would be glad
to do it, and Weiner took him to a room where Kessler and
Willis were both present. There Kiss gave his July 2
statement in the presence of Willis. He testified that he
next spoke to a union representative about a week or 10
days after his discharge when he telephoned Weiner in
Chicago as he had described on cross-examination.
Thereafter on recross-examination and under question-
ing by me Kiss made it clear that his initial testimony was
not the product of confusion or a failure of recollection
and that he had sought to conceal his contact with the
Union on July 2 until told by counsel during a recess that
he was to tell the truth. As for the timing of his telephone
call to Chicago after his discharge which he had initially set
at August 1 and then at a week to 10 days after his
discharge, he testified that he was certain it was no sooner
than Wednesday, July 17, and that he then told Weiner
what Isom had said to him at the time of his discharge. He
testified that before that he had not told anyone else what
Isom had said but that on July 12 he might have told
Hester Limes, an alteration department employee, that he
had been fired because he wasn't spying but wasn't sure.
Kiss testified further that on July 2 when Weiner asked him
if he would give a statement, Weiner did not know what
Kiss was going to say.
At the conclusion of the General Counsel's case
Respondent moved for dismissal of the complaint on the
grounds that Kiss' testimony could not be credited and the
complaint was unsupported without his testimony. Re-
spondent also announced its intention to call Union
Counsel Willis as a witness if the motion were denied. A
recess of 1 month was taken to permit consideration of the
motion, to permit the parties to explore possibilities of
settling the case without decision, and to permit Willis to
obtain counsel. During the recess, the motion to dismiss
was denied, and the hearing resumed as scheduled.
Respondent initially called Union Representative Wil-
liam Smith , who testified that he was responsible for the
hiring of pickets and the supervision of the picketing at
Respondent's store and at Goldblatt's in Decatur. Smith
testified that Kiss was at or near the Goldblatt and Myers
Bros . picket lines on numerous occasions and had picked
up picket signs from' Goldblatt pickets on numerous
occasions, but that Kiss did not picket, supervise picketing,
or have any responsibility with respect to the picketing at
either location. Smith had no knowledge of whether Kiss
was performing services for the Union.
Respondent then sought to call Willis as its next witness.
The Union, through Counsel Brown, who entered his
appearance upon resumption of the hearing and served as
its spokesman for the remainder of the hearing, objected
because Willis was the Union's principal attorney in the
case, because there was no showing that Willis had
knowledge of any material facts, and because the staff
attorneys of the Union functioned as attorneys and not as
organizers and gave employees assurances that what they
learned from them was held in confidence. Respondent's
counsel was asked to state the purpose for which he sought
to examine Willis, and he replied that he wished to
question him about any contacts Willis had with Kiss,
Willis' drafting of the objections to the election, the
identification of the union official described by Kiss who
offered Kiss employment in Willis' presence in Chicago,
and the date of the Chicago meeting. At that point Union
Counsel Brown stated that he would rest on his objection
and that Willis would not take the stand. I then informed
counsel that if Willis did not take the stand I would not
credit Kiss' testimony. Counsel for the Union offered to
consult further with respect to his position over a lunch
recess and was given the opportunity to do so. After the
recess the Union's position was unchanged. Over the
strenuous objection of the Union and General Counsel I
then ruled that I would not credit the testimony of Kiss on
which the allegations of the complaint depended and that
while I would defer formal dismissal of the complaint until
issuance of this written decision, Respondent could rely on
my ruling and refrain from going forward with further
evidence with respect to the complaint, leaving only the
representation case issues for further litigation.
The Union has now moved to reopen the record in the
complaint case for the purpose of hearing Respondent's
defense. The Union contends that, by calling Willis,
Respondent sought to breach the attorney-client relation-
ship and that the matters about which Respondent sought
to question Willis were collateral. The Union requests in
effect that I reconsider and reverse my ruling discrediting
Kiss.
The Union's contention that it would breach the
attorney-client relationship to require Willis to testify does
not withstand scrutiny. Not all aspects of an attorney-
client relationship are immune from enforced disclosure.
Rather the attorney-client privilege extends only to those
communications between client and attorney made in the
course of the attorney-client relationship in professional
confidence.3 Here, as of the time that Willis was called to
testify, Kiss' testimony afforded no basis for concluding
that Kiss at any time had entered into an attorney-client
relationship with Willis. On the only two occasions which
Kiss had testified that he had seen Willis, he gave no
indication that Willis was present at his request or as his
attorney. Nothing in Kiss' testimony would give rise to the
conclusion that there had been any privileged communica-
tions between the two of them. Moreover, the stated
3 McCormick's Handbook of the Law of Evidence, 175-177 (2d Ed.
1972).
MYERS BROS ., INC. 445
purpose of Respondent in calling Willis did not on its face
disclose that Respondent's objective was to elicit testimony
as to any communications between Kiss and Willis,
assuming arguendo that there was an attorney-client
relationship between them. The fact that there were
consultations between them, the dates of their contacts,
and the date and identification of the other participant in
the Chicago conference all would fall outside the scope of
any privilege.4 Even assuming that Willis had the right to
refuse to disclose the substance of any communications
between him and Kiss, there was no indication that he was
about to be asked to do so, and the appropriate course was
for 'Willis to take the witness stand and for union counsel
to object to those questions which related to communica-
tions between Willis and Kiss if such questions were asked,
establishing if necessary at that time through voir dire
examination the factual basis for the claim of privilege. In
sum, even if an attorney-client relationship existed between
Willis and Kiss, it did not relieve Willis of the obligation to
take the witness stand and testify as to nonprivileged
matters.
The Union's other contention, that the matters as to
which Respondent sought to examine Willis were all
collateral and therefore excludable from evidence on that
ground, also must be rejected. It is true that the purpose of
this examination was to support Respondent's efforts to
discredit Kiss by establishing that Kiss had common
interests with the Union, and was biased against Respon-
dent before his discharge and before he gave any
statements to the Board in support of the objections to the
election charges. It is also true that Kiss had been cross-
examined extensively in these areas, that he had admitted
to some extent greater and different contacts with the
Union than he originally sought to portray, and that an
effect if not indeed a purpose' of the examination of Willis
was to attempt to contradict further Kiss' testimony. But
even if Kiss had not been cross-examined at all as to the
time and extent of his contacts with the Union, Respon-
dent would have been free to seek to establish through
independent evidence the existence of a community of
interest between Kiss and the Union before he gave his
statements during the investigation of these cases. The fact
that Kiss had been cross-examined as to these matters did
not transform them into so-called collateral matters as to
which Respondent could not examine .5
Having concluded that Willis could properly be required
to take the stand and submit to examination by Respon-
dent's counsel, I adhere to my ruling at the hearing as to
the effect of his refusal to testify. I, of course, have no way
of knowing what Willis' testimony would have been. But I
do- know that the record as it stood at the time of Willis'
refusal raised a serious question as to the credibility of Kiss
and particularly as to whether the damaging statements he
attributed to Respondent's officials had been fabricated
out of whole cloth or at the very least tailored from more
neutral events in a partisan attempt to assist the Union.
Directly bearing on that question was any contact Kiss
may have had with Willis before July 2, and particularly
before the objections to the election were filed,6 and the
4 Id at 185-187.
5 Id at 99
timing and details of the arrangement to put Kiss on
Respondent's payroll. Having already heard testimony
from a union representative which placed in question Kiss'
explanation of what Kiss had undertaken to do for the
Union and having viewed the credibility issue with respect
to Kiss as exceedingly close even at the conclusion of the
General Counsel's case, I concluded simply that after the
Union's refusal to allow Willis to testify there remained no
possibility that I could credit Kiss' testimony. Accordingly,
I ruled that Respondent was not required to proceed
further with an unnecessary defense, since, absent credible
testimony from Kiss, there was no support for any of the
allegations of the complaint in the record.
Although the Umon points to Kiss' difficulty with the
English language as a major source of his contradictions
and confusion, and contends that Kiss was indeed in large
part corroborated by other witnesses, these contentions are
not persuasive. Quite clearly Kiss' initial testimony about
the circumstances of furnishing his July 2 statement to
Kessler was not the product of difficulty with the English
language. Kiss conceded that he consciously misstated
these facts. What was left in substantial doubt was whether
the revised version of these events furnished by Kiss on
redirect now disclosed the whole truth or whether he
continued to conceal the full extent of his relationship with
the Umon.
That doubt was enhanced by other aspects of his
testimony. Kiss' testimony attributes to Respondent's
agents a series of consistently damaging statements which
spell out the alleged violations in black and white and at
the same time sets up anticipatorily Kiss' own defense to
Respondent's contention that he was a supervisor. It is not
plausible that this series of incriminatory statements to
Kiss began and continued only days after an article
appeared in a Decatur newspaper dealing with the scarcity
of alterations department employees in Decatur and
attributing to Kiss statements that reasons for the scarcity
were low pay and the ugliness, heat, and dirt of their
working areas. It is likewise implausible that despite
increasing signals to management by Kiss that his interests
were not allied with theirs, culminating in his virtual
announcement on June 20 that he had voted for the Union,
Isom nonetheless thereafter spelled out to Kiss in chapter
and verse the unlawful reason for his discharge. Finally, it
is unlikely that on the Monday after Kiss' discharge, Union
Representative Weiner filed the charge in this case without
any prior communication from Kiss. None of these
implausibilities in Kiss' testimony may be ascribed to Kiss'
difficulty with the English language, and indeed the
inconsistencies in his testimony as to when he learned of
the charge, when he went to Chicago, and what Kessler
said to him about his discharge, look more like the kind of
confusion attendant to a crumbling attempt at coverup
than to language difficulties. As for the claim that Kiss'
testimony was in large part corroborated, the evidence
relied on tends only to show that actions which Kiss
allegedly discussed with management occurred; none of it
corroborates Kiss' testimony that repeatedly Respondent's
6 The objections which were signed by Willis were dated June 21, 1974.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
officials made damaging admissions to Kiss concerning
these actions.7
After reviewing the record and further reflection upon it,
I find no reason to rescind my ruling discrediting Kiss and
to reopen the record. Accordingly, the Union's motion to
reopen the record is denied, and I shall recommend that
the complaint be dismissed in its entirety.
The Union's motion to sever the unfair labor practice
proceeding from the representation case rests on its
contention that, absent such severance, final disposition of
the representation case will be delayed pending exhaustion
of all possible stages of review of the disposition of the
complaint. At this stage of the proceeding the feared delay
can only be regarded as speculative, and to the extent that
any of the parties may file exceptions to the disposition of
either case made in this Decision, the same factors which
warranted their consolidation for purposes of hearing
warrant their continued consolidation for purposes of any
consideration by the Board. Review before the Board
should be no less expeditious if they remain consolidated
than if they are severed. I find no cause to sever the cases
at this stage of the proceeding and therefore deny the
Union's motion to sever.
IV. THE REPRESENTATION CASE ISSUES
A. The Challenged Ballots
1. Mary Dudley and Jane Flynn
The ballots of Mary Dudley and Jane Flynn were
challenged by the Union on the ground that both were
casual employees. In addition, the Union contends that
both were hired by Respondent on the last day of the
eligibility period not for any business reason but for the
purpose of securing their votes against the Union.
Mary Dudley and Jane Flynn both started to work in the
alterations room on Saturday, May 25, the last day of the
eligibility period for voting in the election to which
Respondent subsequently agreed. Neither showed on her
application that she had any prior experience in alterations
work. Dudley's application showed that she was a high
school graduate, that her special skills consisted of
operating office equipment, that she had last worked as a
secretary, and that she had not been employed for 8 years.
Her application indicated that she was available for part-
time work, and that Glenda Smith, first-floor manager for
Respondent, was her daughter-in-law. The outside of
Respondent's personnel folder for her shows that she was
hired for alterations on May 25 at $2 an hour. Dudley's
application was dated May 29.
Jane Flynn's undated application for employment
showed that she was a college graduate with a degree in
education, that her special skills included operation of
business machines and shorthand, and that she had no
prior employers. Her application indicated that she was
7 It should be noted that, apart from the allegation based on the
discharge of Kiss, all the other allegations of the complaint are based on the
statements allegedly made to Kiss and not on the actions to which they
related Thus the complaint does not allege that the transfer of Thompson
was discrimmatory, that the attempt to transfer Dobney was unlawfully
motivated , or that the part-time employees hired on May 25 were hired for
the purpose of interfering with the election Rather it alleges that
seeking part-time work with a maximum of 16 hours per
week and that the reason she sought only part-time work
was because of the cost, of babysitters and the difficulty in
finding them. Her application showed that she was the wife
of Decatur Assistant Store Manager Frank Flynn.
The outside of Respondent's personnel folder for Jane
Flynn showed that she was hired for alterations on May 25
at $2 an hour. It contained a note written by Personnel
Manager Miller based on information furnished her by
Flynn which read:
Jane Flynn worked 1-1/2 hrs 5-25-74. Will work 1 /2
day Friday 1/2 Sat. or will work I full day on Friday or
Sat.
Miller did not know when the note was written, but
believed that it was not written on Flynn's first day of
employment because Miller does not ordinarily work on
Saturday.
On May 25 Flynn worked from 3:17 to 5:02 p.m.
Between then and the date of the election she worked 7
hours on Saturday, June 1; 8 5 hours on Wednesday, June
5; 5 hours on Thursday, June 6; 1 hour on Wednesday,
June 12; 4-1/2 hours on Thursday, June 13; and 4-1/2
hours on Friday, June 14. From June 18 through August 3
she averaged slightly more than 10 hours a week, usually
working 2 part days each week. She did not work at all
during the 2 weeks ending August 10 and 17, worked 5
hours the following week, and 10-1/2 hours during the last
week in August.
On May 25 Mary Dudley worked from 11:07 a.m. to
5:05 p.m. Between then and the date of the election she
worked 1-1/2 hours on Wednesday, May 29; 2 hours on
Friday, May 31; 1-1/2 hours on Wednesday, June 12; 1-
3/4 hours on Thursday, June 13; 1-1/2 hours on Friday,
June 14; and 3-1/2 hours on Saturday, June 15. From the
date of the election through August 31, Dudley averaged
slightly less than 10 hours a week, usually working one half
a day on Saturday, and 1-1 /2 to 2 hours three or four
afternoons a week.
Neither Dudley nor Flynn testified in this proceeding,
and Isom, who testified as to the supervisory status of Kiss,
was not questioned about the employment of Dudley and
Flynn. Miller testified that she usually interviewed appli-
cants for employment before they were hired but she did
not interview Dudley or Flynn. There was thus no witness
involved in the hiring process who testified with respect to
any understanding as to the frequency or duration of the
employment of Dudley and Flynn.
There is uncontradicted evidence that, approximately 2
weeks before the employment of Dudley and Flynn, Dee
Thompson, an experienced seamstress, was transferred out
of the alterations room to a selling job, and shortly
thereafter Fran Dobney, who had been in the alterations
room for about 2 years, was asked if she wanted to transfer
Respondent's agents interfered with employee rights by making statements
as to the purpose of these actions.
8 Her timecard for the period from May 27 through June 8 shows this
entry in the line for June 16, which was a Sunday and not dung that pay
period. Obviously, the card was stamped one line above where it should
have been stamped, which Miller explained happened occasionally on the
first of the month.
MYERS BROS., INC.
back to the lingerie department where she had originally
worked in a selling job . Dobney said she did not want to
transfer and remained in the alterations room.
Dobney testified without contradiction that Dudley was
brought to the alterations room by Isom and Assistant
Manager Flynn who introduced Dudley to the others
working there and told them Dudley would be with them
to help them out when they needed extra help. Dobney
also testified without contradiction that alterations work
was slow at the time and that work was being brought in to
the Decatur alterations room from Respondent 's Spring-
field store . Dobney, who had been taught to alter men's
trousers from Kiss, showed Dudley how to perform some
alterations work on men 's pants. Hester Limes, an
experienced alterations employee, testified that Dudley did
mostly repairs to stock and smalljobs , but did not perform
any complicated work. According to Dobney, the others in
the alterations room had enough time so that they could
have done Dudley's work if Dudley had not been there.
Dobney testified without contradiction that when Isom
and Flynn brought Mrs. Flynn to the alterations room they
introduced her to the others in the department as a teacher.
They said she would work part -time and would come and
help out as an extra when they needed extra help, when
others were . on vacations, or when someone was sick.
Dobney showed Flynn how to sew pants buttons and gave
her work to do.
Shortly after Dudley and Flynn started to work in the
alterations room a work schedule was posted showing the
days and hours that each alterations department employee
was to work . There is uncontradicted testimony that no
similar schedule had previously been posted in the
alterations room.
The posted schedule showed that Dudley was to work
three afternoons from 3 to 5 and one-half day on Saturday.
Dudley, however, was regularly late on the afternoons she
worked , and other employees complained about her failing
to work her scheduled hours. Subsequently, her hours were
changed and she was scheduled to work four afternoons a
week from 3 : 30 to 5 and one-half day Saturday. According
to Dobney, Dudley told her that she was a secretary and
did not get off her other job until 3 p.m.
Dudley has not worked at the store since the middle of
September. Hester Limes testified without contradiction
that she asked Personnel Manager Miller what had
happened to Dudley, and Miller said that she didn't know,
that Dudley was involved in football this season, and
Miller had to wait until Dudley got her football schedule
before she could schedule her work . From mid-September
until the time of the hearing Dudley's name appeared on
the work schedule prepared for the alterations room but
she had not worked.
In support of its , contention that Dudley and Flynn were
hired[ for the purpose of obtaining their votes against the
Union, the Union relies on a number of circumstances
which appear from the testimony of Dobney , Limes, dan
Miller and which it contends warrant the inference that
this was Respondent 's purpose, wholly without reference to
the discredited testimony of Kiss relating to this issue.
These circumstances are:
447
1. Dudley and Flynn's lack of any prior experience or
training in alterations work.
2. Dobney's testimony that work in the alterations
room was slow at the time of hire and that their work could
have been done by the existing complement. -
3. The fact that their hire followed shortly the transfer
of Thompson out of the alterations department and the
attempt to persuade Dobney to transfer.
4. The fact that both were hired on the final day of the
eligibility period.
5. The fact that normal hiring procedures were not
followed in that neither was interviewed by Miller, both
were hired in her absence on a Saturday , Dudley's
application was not filled out until after she was hired, and
Flynn's undated application was not taken by Miller.
6. The absence of any demonstrated business reason
for the haste in hiring Dudley and Flynn and putting them
to work on May 25, particularly in the light of the fact that
Flynn worked only 1-1/2 hours on that day and did not
work again until the following Saturday , while Dudley,
who worked 7 hours on May 25, worked only 3-1/2 hours
on 2 separate days during the following week and did not
work at all in the week after that.
7. Dudley and Flynn were both introduced to the other
employees as casual employees who would be used to fill in
as needed and without any indication that they would
work regularly.
8. The applications of both Dudley and Flynn show
that they had marketable skills with which they could have
earned more than the hourly rate paid them by Respon-
dent.
9. Dudley and Flynn had no serious intention of
remaining permanently with Respondent because each had
other skills or occupations to pursue.
10. Respondent knew that both Dudley and Flynn
would vote against the Union if hired because each was
related to a member of Respondent 's management.
Respondent argues that the contention that the timing of
the hire was designed to get Dudley and Flynn on payroll
on the last day of the eligibility period must fail because
the eligibility period had not yet been determined when
they were hired and because, by simply refusing to
stipulate to an election and requiring the representation
petition to go to hearing, Respondent could have insured
that both would have been on the payroll for several weeks
before the eligibility date cutoff before the election.
Respondent argues that it obviously would have done just
that if its purpose was to pad the payroll rather than permit
the last-minute hiring of Dudley and Flynn to stand as a
signal of devious intent. Thus Respondent in effect
contends that the fact that it hired Dudley and Flynn on
the last day of the eligibility period proves that its intent
was not to pad the payroll and was lawful.
If the date of hire of Dudley and Flynn stood alone as
the sole evidence supporting the Union's contention, I
would be inclined to accept Respondent's argument. But it
is not the only evidence as to Respondent 's purpose, and
whatever hindsight may suggest would have been a better
course I am not persuaded , in the face of the other factors
supporting the inference of irregularity, that Respondent
simply would not have agreed to the May 25 eligibility date
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if its purpose in hiring Dudley and Flynn was to tilt the
election . The decision to consent -to an election is seldom
controlled by a single consideration and probably was not
in this case . Indeed , the nature of the other factors which
support the inference adverse to Respondent is such that it
is not all that certain that anything but a long delay would
have improved the chances of concealing the purpose of
hire or barring successful challenges to these ballots.
Each of the factors relied on by the Union independently
may have explanation , but each requires one, and none
was offered. No one from management testified to the
circumstances of the hire of Dudley and Flynn or to
explain the multiple anomalies surrounding their hire -
both hired on Saturday in the absence of Miller, both
relatives of management , both put on the payroll and to
work immediately , both with other marketable skills, both
not settling into their regular work schedules until a week
or two after this initial workday, both hired shortly after
one transfer out of the alterations room and an unsuccess-
ful attempt to transfer another experienced employee out,
and both hired at a time when work was slow. The
probability is slight that any of these circumstances
individually accompanied the hiring of additional employ-
ees as a result of need for additional workers; the
probability diminishes , to zero that all of these factors
accompanied the hiring of additional employees as a result
of need. In the absence of any contrary explanation the
record warrants the inference from these factors and
particularly from the timing of their hire and their
relationship to management that Dudley and Flynn were
hired for the purpose of voting against the Union and were
not properly to be considered as regular employees eligible
to vote in the election .9 Accordingly, I shall recommend
that the challenges to their ballots be sustained.
2. Donna Bragg
Donna Bragg was hired by Respondent on March 11,
1974, as an alterations worker at the rate of $2.25 an hour.
A separate work area was established for her near the
bridal department, and she worked almost entirely on
bridal alterations . Her job application showed that she was
seeking part-time work limited to no more than 30 hours a
week because of pregnancy, that she had left her most
recent job because of pregnancy, and that she had left an
earlier job because of a previous pregnancy. Her applica-
tion indicates that Bragg was an experienced alterations
worker.
On or about April 20, Bragg stopped coming to the store
because of her pregnancy, but she continued to do some
work for Respondent at her home, for which she was paid
on a piece-work basis.
According to Personnel Director Miller , Store Manager
Isom told her that Bragg was granted a maternity leave and
would continue working at home while on leave . Miller did
not know whether the leave had a definite expiration date
or was indefinite in duration.
Bragg's child was born some time in June. Several weeks
later Miller asked Bragg when she was coming back to
9 I find it unnecessary to consider the Umon's alternative contention that
work . Bragg said that she would return as soon as she
could find a babysitter and that she would continue to
work at home in the meantime . On August 26, Bragg
informed Isom by letter that she had ran into some
complications trying to find a babysitter , that she realized
this put him "in a bind," and that she would be "more than
happy" to work at home. Bragg continued to do alterations
work for Respondent at her home and had not returned to
work in the store as of the time of the hearing.
Respondent contends that Bragg was eligible to vote
because at the time of the election she was on maternity
leave with a reasonable expectation of returning to work.
The Union contends that the evidence does not support the
inference that she had a reasonable expectation of
returning to work but establishes that she was a homework-
er and therefore ineligible to vote.
Isom , from whom Miller said she learned of the leave,
was not questioned about his arrangements with Bragg,
and Bragg was not called as a witness . However, Miller's
hearsay testimony as to what Isom told her about Bragg's
status is corroborated by Miller's testimony as to her
subsequent conversation with Bragg and by Bragg's later
letter which support a finding that at the time Bragg left
work at the store in April , she did not quit , was put on
leave, and had expectations of returning within a month or
2 after her baby was born . The limited homework which
Bragg performed before the baby was born does not
warrant the inference that her status had changed before
the election, even if subsequent events give cause to believe
that at the time of the hearing her status had changed to
homeworker.
The Union contends that the testimony that Bragg was
on maternity leave should be rejected because the leave
commenced only 5 weeks after her initial hire contrary to
common industrial practice , because there is no evidence
that it was limited to any particular duration, and because
she worked at home while on leave, contrary to general
practice . Absent Miller 's testimony and Bragg's letter to
Isom these contentions might be persuasive, but on this
record they are not. The facts that Respondent hired her to
work in the store after she had left another job because of
her pregnancy , and that she worked at home after she
stopped coming to the store, indicate that Respondent had
more than a passing need for her skills. While aspects of
the grant of maternity leave might appear unusual were she
a recent hire without special skills, it is not implausible that
special consideration would be given to one in her position.
Notwithstanding the fact that no certain date for her return
had been set at the time Bragg went on leave , Miller's call
several weeks after Bragg's baby was born and Bragg's
letter of apology in late August indicate that there was an
understanding that ' Bragg would obtain a babysitter and
return to work within a couple of months after the birth of
her child. Accordingly, I find that Bragg was an employee
on maternity leave with a reasonable expectation of
returning to work and was eligible to vote in the election.
Dudley and Flynn were not regular part-time employees as of the eligibility
date, apart from the purpose of their hire.
MYERS BROS ., INC. 449
3. John Kiss
There is general agreement that Kiss was made a
supervisor at the time he was hired in July 1971, and that
he was given authority to hire and fire employees , to assign
work, and to do what was necessary to remedy what was
described at that time as a mess in the Decatur alterations
room . According to Kiss, his duties were later expanded to
include supervision of alterations at all eight of Respon-
dent's stores in Illinois. However, Kiss testified further that
following the arrival of Isom at the Decatur store as
manager and the rehiring by Isom of an employee whom
Kiss had previously fired, Kiss, in October or November
1972, gave notice that he would quit if not relieved of all
supervisory duties and thereafter was told that Respondent
acquiesced to his request to be relieved of supervisory
authority. Hester Limes also testified that in the winter of
1972 Kiss told her he had given notice to Respondent, and
a few days later told her he was staying but was no longer a
supervisor or any kind of boss and was just a tailor and a
worker like the rest of them.
Respondent did not question Isom as to the alleged
withdrawal from supervision by Kiss and did -not call
others whom Kiss identified as involved . However, before
Isom testified , I had ruled that I would not credit Kiss
based on the refusal of Willis to testify. Before that ruling
Respondent had introduced through Kiss a document
tending to discredit Kiss' testimony that he was no longer a
supervisor after November 1972, and after that ruling.
Respondent limited the evidence it presented relating to
Kiss' supervisory status to testimony of Isom as to two
instances in the spring of 1974 when Kiss allegedly
discharged or effectively recommended discharge of
employees.
The document presented by Respondent is dated
February 20, 1973, and is a memorandum addressed to
Respondent's then personnel manager from "John Kiss,
Foreman of Tailor Shop." It deals with the shortcomings of
an alterations department employee who was laid off some
2 weeks earlier and who was making a claim against the
company apparently for a medical disability which she
attributed to the job. Apart from statements about her
work and her complaints , Kiss also stated:
She doesn't respect me as a foreman . She didn't call me
ever to report her absence . I have to find out from
someone else . This causes embarassment and reputa-
tion with other workers.
I never pressure any of my employers [sic]. I believe
every employer [sic ] should produce at least enough to
cover her wages, because the company doesn't charge
any alterations of men's wear. We try to give addaquet
[sic] wages to everyone in the tailor shop . But I was
never able to get that much work out of Mrs. Jennings
.... To my knowledge, she can't hold the job, and we
loose [sic] money because of her illness because of what
she had before , at time she was hired.
Kiss signed the statement , "John Kiss, Tailor Shop
Foreman."
The wording of this memorandum suggests that it was
indeed more than an accommodation , as Kiss testified, to
assist Respondent in contesting Mrs. Jennings ' claim. But
whatever its purpose , the title used by Kiss and the quoted
statements show that, as of its date, Kiss did not deem
himself just a worker like all the others in the department.
The testimony of Isom as to Kiss' actions in 1974 also
supports Respondent's contention that Kiss remained a
supervisor in 1974. Isom testified that in early 1974 Kiss
complained to him continually that the work of Frances
Haram was sloppy and did not meet his standards, that
Kiss ultimately brought a woman's coat to the mezzanine
where Isom's office was located to show it to Isom as a
sample of her incompetence , and that Kiss said - he just
couldn't stand that kind of work anymore . Isom testified
initially that he told Kiss he agreed and they should let her
go. Later he testified on cross-examination that he
counseled with Miller about a potential discharge and
made the decision at the conclusion of their deliberations.
At that time he testified that when, Kiss showed the coat to
him he did not make an on-the-spot statement that they
would discharge Haram because they were standing in an
open area.
Although uncertain as to the woman's name, Kiss
testified that he remembered her and the coat, that in his
judgment she knew nothing about alterations , and that
Isom could see that for himself from her work. However,
he denied that he took her work to Isom to show it to him
and that he spoke to Isom about her work.
Apart from the Haram incident, Isom also testified that
Kiss was instrumental in the discharge of Janice Parvins in
March or April 1974. He testified that Kiss had com-
plained that she was too slow and had too many visitors
interrupting work in the alterations room, According to
Isom, in March or April, Isom learned that Parvins had
been terminated and asked Kiss what had happened. He
testified that Kiss told him that there were too many
visitors in the alterations room, that he told Parvins it
would have to stop or she would have to go , that she
replied that she could leave immediately , and that he told
her to go. Kiss was not questioned about this incident.
The evidence otherwise shows that each employee, after
he gained experience in the alterations room , had primary
responsibility for a particular kind of alteration, and each
normally took work from the rack of garments to be
altered in accord with that responsibility . When an
employee was short of work, he or she would help perform
another kind of work. There is testimony that the
distribution of work was handled with a minimum of
direction and that employees assumed responsibility on a
day-to-day basis for much that they did. While Kiss
trained some new employees , others with experience also
trained new employees.
The evidence as to the extent of Kiss' direction of the
department is close, but on the record as a whole I
conclude that Kiss retained some supervisory authority
throughout his entire period of employment . Thus, the
memo he wrote after he claimed to have relinquished all
supervisory authority and responsibility is inconsistent
with his claim. Even if Kiss rather than Isom were to be
credited as to the discharge of Haram, the uncontradicted
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence as to the termination of Parvins shows an exercise
of authority by Kiss substantially in excess of that of a
mere employee. Granting that the employees regulated
themselves and their work much of the time, the fact
remains That Kiss had skills and abilities not shared by
anyone above him in management and worked in a
department where new, relatively unskilled employees
periodically needed training and direction. I conclude that
Kiss was a supervisor and that the challenge to his ballot
should be sustained.
B. The Objections
The Union filed six objections to conduct affecting the
results of the election. They were:
1. On or about May 7, 1974, and thereafter Employer
engaged in coercive interrogation of its employees regard-
ing employees ' sympathies toward the Amalgamated.
2. On or about May 17, 1974, Employer transferred an
employee from the alterations department and otherwise
discriminated against said employee in order to discourage
support for the Amalgamated.
3. On or about May 20, 1974, and thereafter Employer
attempted to dissuade employees from engaging in the
protected activities in support of the Amalgamated by
threatening employees with changes in working conditions.
4. On or about May 23, 1974, Employer threatened an
employee with discharge if the employee did not assist
Employer in discouraging support for Amalgamated.
5. On or about May 25, 1974, Employer placed Mary
Dudley and Jane Flynn in the alterations department for
the purpose of dissipating the vote of bargaining unit
employees and thereby interfering with the right of
bargaining unit employees to select a bargaining agent.
6. Since on or about May 25, 1974, Employer has
engaged in -active surveillance of the alterations depart-
ment employees.
No evidence was offered at the hearing to support
Objections 3, 4, and 6. The only evidence presented to
support Objection 1 was the testimony of John Kiss, which
has not been credited. With respect to Objection 2, there is
evidence, that, at or about the time alleged in the objection,
Dee Thompson was transferred out of the alterations
department to a selling job. However, apart from the
discredited testimony of Kiss as to Isom's statement of the
reason for the transfer, there is no evidence to show that
the reason for the transfer was discriminatory. With respect
to Objection 5, the evidence is set forth above in
connection with the challenged ballots of Mary Dudley
and Jane Flynn. I have relied on that evidence as a basis
for recommending that the challenges to their ballots be
sustained. The exclusion of their ballots and that of Kiss
will make it unnecessary to open the remaining challenged
ballot of Bragg and will result in certification of the Union
as representative of the employees. Accordingly, I find it
unnecessary to decide whether the evidence supporting this
objection would otherwise warrant setting the election
aside and shall recommend that the objections be over-
ruled.
Upon the basis of the above findings of fact and the
entire record in this case, I make the following:
CONCLUSIONS OF LAW -
1. Respondent, Myers Bros., Inc., Decatur, Illinois, is
an employer within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Chicago Joint Board, Amalgamated Clothing Work-
ers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. It has not been established that Respondent has
committed any of the unfair labor practices alleged in the
complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
RECOMMENDATION
On the basis of the findings and conclusions set forth
above, I recommend that the objections to the election held
on June 18, 1974, in Case 38-RC-1566 be overruled, that
the challenges to the ballots of Mary Dudley, Jane Flynn,
and John Kiss be sustained, and that a Certification of
Representative be issued.