S. SwartzDownload PDFNational Labor Relations Board - Board DecisionsNov 18, 1963145 N.L.R.B. 45 (N.L.R.B. 1963) Copy Citation S. SWARTZ 45 of North America, Atlantic, Gulf, Lakes, and Inland Waters District, AFL-CIO, or any other labor organization of our employees, by discharging, transferring, refusing to reinstate, or in any other manner discriminating against them in regard to hire or tenure of employment or any terms or conditions of employment. WE WILL NOT interrogate our employees about their union activities or senti- ments in a manner constituting interference, restraint, or coercion within the meaning of the Act, promise them benefits or threaten them with discharge or other reprisals because they affiliated with the above-named Union or engaged in other concerted activities, or to persuade them to refrain from union or other concerted activities, or to vote against any labor organization in a Board- conducted election. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed to them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act. WE WILL offer William H. Sawyer immediate and full reinstatement to his former or substantially equivalent position at Richmond, Virginia, without prejudice to his seniority or other rights and privileges previously enjoyed, and we will make whole William H. Sawyer and Jack B. Harris for any loss of pay suffered as a result of our discrimination against them. All our employees have the right to form, join, or assist any labor organization, as well as the right not to do so. SOUTHERN MATERIALS COMPANY, INCORPORATED, OF NORFOLK, Employer. Dated------------------- By------------------------ -------------------(Representative) (Title) NOTE -We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board' s Regional Office, Sixth Floor, 707 North Calvert Street, Baltimore 2, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Sarah Swartz, Herman M. Weisman and M. James Weisman d/b/a S. Swartz and Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 4-CA- 785. November 18, 1963 DECISION AND ORDER On August 19, 1963, Trial Examiner Thomas N. Kessel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs, and the Respondent filed a brief in support of the Intermediate Report. 145 NLRB No. 6. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning , and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs , and the entire record in this case, and hereby adopts the findings, conclusions , and recommen- dations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed November 13, 1962, by Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, against Sarah Swartz, Herman M. Weisman and M. James Weisman d/b/a S. Swartz, herein called the Respondent, the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region, issued his complaint dated January 25, 1963, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct in the complaint. Upon notice of hearing duly served upon the parties, a hearing was held at Philadelphia, Pennsylvania, on March 11 and 12, 1963, before Trial Examiner Thomas N. Kessel. All parties were represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence was afforded all parties. After the close of the hearing the General Counsel and the Respondent filed briefs which have been carefully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership the employees of the Respondent. H. PERTINENT COMMERCE FACTS The Respondent is a partnership engaged in the operation of a retail furniture store in Philadelphia, Pennsylvania. In connection with the operation of its busi- ness the Respondent also maintains a warehouse in Philadelphia. During the year preceding issuance of the complaint the Respondent sold goods valued in excess of $500,000, and during the same period purchased goods valued in excess of $50,000 which were shipped to its place of business in interstate commerce from points outside Pennsylvania. It is conceded and I find from the foregoing facts that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction over its business in this proceeding. III. THE UNFAIR LABOR PRACTICES The General Counsel contends that on or about October 29, 1962, the Respondent, through its agent, Benjamin Butler, terminated the employment of seven employees because of their union activities and at the same time informed them that this was the Respondent's reason for the action. By this conduct the Respondent allegedly violated Section 8(a)(3) and (1) of the Act. Employees alleged to have been discriminated against are James Garner, George Lester, Robert Lester, Russell Lester, Vance Ward, Vernon Ward, and Donald Young. The Respondent cate- gorically denies these allegations. It concedes that Robert Lester, Vance Ward, and Vernon Ward were discharged on October 29, 1962, but asserts that these actions were justified by the misconduct of the employees. The Respondent claims that James Garner, Russell Lester, and Donald Young were never discharged but that S. SWARTZ 47 they voluntarily quit their jobs on or about October 29, 1962. As to George Lester, the Respondent's explanation is that he had been a temporary employee who did not receive employment on and after October 29, 1962, merely because there was no work for him. The circumstances of the case pertain exclusively to the Respondent's warehouse which the Respondent maintains in Philadelphia tor the storage and shipment of furniture to customers in its trucks. The employees herein involved worked at this location under the supervision of the aforementioned Benjamin Butler who manages the Respondent's warehouse. The facts concerning the organization of the warehouse employees by the Union are not disputed. This activity started shortly before October 22, 1962. On that date the complaining employees mentioned in the complaint signed the Union's authorization cards at the house of Russell Lester. Lester testified that on October 29, 1962, Butler called him to his office and in- formed him he was going to lay off "the whole crew," including Lester, on orders of Herman Weisman, one of the Respondent's partners, because Weisman had heard the employees were being organized. Lester assertedly received this information about 3 p.m , but nevertheless worked the remainder of the day. He related that the next day he and Vance Ward, who as noted below had received notice of his termination on October 29, went to the Union's office and consulted with Business Agent Archie McGowan. The latter directed Lester to return to the warehouse with the other employees alleged by the complaint also to have been laid off by Butler. Lester was to ask why he and these others had been laid off and to receive his reply in the presence of the entire group. He recounted that Butler was confronted and asked the reason for his action, whereupon he stated "in front of everybody" that "we were in the union, joined the union," or "I heard you were getting organized" and that the employees should have told him these things. This having been said, all in the group walked away except Donald Young and James Garner who re- mained and spoke with Butler. Lester further testified that a month or two after the foregoing incident he returned to the warehouse and asked for work, but that Butler turned down his request be- cause he "should have told him about the union" and that he "was going to get into the union." In January 1963 he again asked Butler for work but was turned down for the same reason. Lester testified that in the morning of the day on which the hearing in this case opened he was summoned to Butler's office by employee Sam Moore. Butler there offered to reemploy him on condition that he "come with him" rather than with "the other guys." Russell says he chose to go "with them" and walked out of the office. He denied that he had quit his job on October 30 and that he had ever told Sam Moore he regretted having quit. Lester's explanation for failing to apply for unemployment compensation is that he thought the Union would get back -his job and he had not realized how long this would take. Vance Ward testified that he had worked all day on October 29, 1962, making truck deliveries to the Respondent 's customers . Upon his return to the warehouse about 7 p.m., Butler assertedly said to him in the presence of employee Sam Moore, "I am going to tell you the same thing I told Sam, you can't work for me no more." Ward claimed he called for an explanation and Butler replied that he had orders from Herman Weisman to discharge the entire warehouse crew. Ward thereupon left. He related that the next day he went to the warehouse where he met the other employees alleged to have been discharged. When Butler ordered them not to enter the warehouse the group went to the Union' s hall and was directed by Business Agent McGowan to return to the warehouse to try to get back their jobs. If Butler were to refuse to allow them to go to work they were to find out from him why they had been discharged. Ward testified that in accordance with these instructions the employees confronted Butler and that Russell Lester, the group's spokesman, asked why they had been fired. Butler, said Ward, declared he had discharged them on orders from Weisman who had heard they were being organized and did not want a union in the warehouse. Ward denied admitting to Sam Moore in December 1962 that he had been dis- charged for drinking. He also denied that he had worked on Saturday, October 27. 1962. This denial is significant because of the Respondent's defense that Ward had been discharged for his misconduct that day while making a furniture delivery with Sam Moore. Ward had filed for unemployment compensation with the Pennsylvania Bureau of Employment Security but his claim had been disallowed. He had not appealed. He denied admitting in that proceeding that he had been discharged for drinking on the job and damaging furniture. Donald Young testified that he reported for work at the warehouse at 8 a m on October 30. Upon arrival he entered Butler 's office and inquired concerning the whereabouts of the other employees. He related that Butler told him "he had fired 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them for different reasons." "Like what ," asked Young. "For drinking on the truck, for goofing off in the warehouse ," replied Butler. Butler then asked Young several times to explain what was going on and Young , who had not yet seen any of the other employees , assured him he did not know. Butler sent him for his breakfast. Upon Young's return he found Garner in the office . Butler was questioning Garner concerning what was taking place and Garner , like Young , maintained he did not know what was going on. Later Vernon Ward and Robert Lester appeared outside the warehouse and Butler called Vernon Ward inside . Butler continued to inquire of Ward, Young , and Garner about what was going on but none of them could tell him because as Young put it, "We didn 't make no heads or tails what was going on." The three employees then went outside the warehouse where they were joined by the other four employees named in the complaint . Weisman arrived and entered the warehouse and, according to Young, that was the last he saw of him. After 15 or 20 minutes the group went to the union hall and were advised by McGowan to return to the warehouse to see which of them could get back their jobs. Young related that he returned to Butler's office and was told by Butler that he had nothing against him, Garner , or Russell Lester . He asked Young whether he wanted to go to work and Young replied not that day because he was not feeling well and wished to go home Butler thereupon gave him permission to leave and instructed him to return the next day. Young testified that he returned at 8 a.m. the following day and was then told by Butler that he had orders "from Mr. H. to fire the whole crew." He asked Butler whether he was fired or laid off and Butler told him that he could only state that "he had orders from Mr. H." Young stated that Garner was with him at the time. Having concluded the foregoing account , Young was asked , still in his direct examination , whether he had heard Russell Lester say anything to Butler. Thus prompted , Young testified that Lester had asked Butler in the presence of all the complaining employees whether they had been fired and that Butler had acknowl- edged this to be the fact , adding that this action had been ordered by Weisman. Later, during his redirect examination , Young testified that on October 30 the group of seven employees had gone from the union hall to the warehouse where Russell Lester had asked Butler in front of the employees whether they had been fired and that Butler had given the foregoing reply, and that directly afterward Butler had instructed him and James Garner to go to work. James Garner appears to have testified that he was one of the group of employees which on October 30 had gone from the union hall after speaking to Business Agent McGowan to try without success to get Butler 's permission to go back to work. He acknowledged that Butler had not expressly told the employees they were fired or laid off. He recalled that Butler told him and Young he had nothing against them and they could go to work the next morning . He claimed he returned the follow- ing day but "that's when Mr. Butler told us that he couldn't let us work ." Butler did not say why, only that "he had orders ." Thereupon Garner left and never returned to seek his job. Vernon Ward testified that at 10 a.m., October 29, Butler called him to his office and asked whether he could keep a secret. Assuring Butler that he could, he was told that on orders from Weisman all the warehouse employees were to be dis- charged because they were trying to organize a union . Ward further testified he was not then laid off but that this action occurred at 4 p.m. that day. He claimed he returned to the warehouse early the next morning and was summoned to Butler's office. Butler there said to him , "I told you that I was going to put you up on a different social security number and get you a job ." Ward did not elaborate upon the meaning of this remark. He related that he went to the union hall with all the other employees and that McGowan sent them to the warehouse to get back their jobs. Upon their return to the warehouse Russell Lester asked Butler why all the employees had been fired and the latter 's response was he had been ordered to do so because they tried to organize a union. McCowan testified that on the morning of October 29, a group of the Respondent's employees came to him and stated they had been discharged . He tried but was unable to contact Weisman by telephone . He instructed the employees to return with all the other employees who had been discharged . They came back to his office about 1 p.m. and he directed them to go to their foreman and to have Russell Lester inquire within their bearing whether they had been discharged and if so why. Butler denied knowing about the union activities of the Respondent 's employees on or before October 29 , 1962. He denied that any of them had been discharged for such activities . He admitted having discharged Vance Ward, Vernon Ward, and Robert Lester on October 29 but claimed he did so justifiably for cause . He insisted that Donald Young, James Garner , and Russell Lester were not discharged or laid off, or in any manner terminated on October 29 or 30, but that they themselves S. SWARTZ 49 had elected not to work and thereby quit their jobs. George Lester, he said, also was not discharged or laid off on these dates. Butler explained that he had been a temporary employee whose brief period of employment had ended on Saturday, October 27, when he was told not to report the following Monday as there was no further work for him. Concerning Vance Ward, Butler related he had discharged him on October 29 because he had received a complaint from a customer that day about damage to a sofa which had been delivered to her by Ward and Sam Moore the preceding Saturday, October 27. The customer had also requested that Ward not be sent to her home again because he had been intoxicated when he made the delivery. The same day Herman Weisman had called Butler about a customer complaint concern- ing a drunken helper on a truck who, upon investigation, turned out to have been Ward. Weisman was critical of Butler's toleration of such behavior. For these reasons Butler decided to discharge Ward and did so when he reported to the ware- house on the evening of October 29. On this occasion Butler mentioned to Ward the many warnings he had given him for drinking while making deliveries and told him that he was through because he had disregarded these warnings. Regarding Vernon Ward's discharge, Butler explained that he had warned him in the morning of October 29, as he had in the past, not to go out of the warehouse onto the fire landings of the building. The warehouse doors are wired so that if opened at night the Owl Company which protects the building receives a warning. If the doors are not shut when the warehouse closes at the end of the day the pro- tecting agency will not get an adequate signal. This necessitates an inspection on all 10 floors of the warehouse to locate the open door. In the afternoon of Octo- ber 29, Vernon Ward and Russell Lester had been in the warehouse pulling furniture and again Butler's warning not to go on the fire landing was disregarded. He called them down and gave another warning. At this point he smelled wine on Ward's breath. Having already received a complaint about Vance Ward's drinking on the job he decided this was the time to get rid of anyone else who had liquor on his breath. He thereupon discharged Vernon Ward. As to Robert Lester, Butler testified that he had been hired at the request of his brother. Lester had been serving a jail sentence from which he could be released only if a sponsor would give him a job. Because of Butler's respect for Lester's brother and out of consideration for their mother, he sponsored Lester and gave him a job. There were times during his employment when he came to work with liquor on his breath and was sent home. Butler nevertheless felt responsible for him and kept him working. On October 29 Lester was supposed to be at work on the warehouse platform. When Butler failed to see him there he went to the finish- ing room where he saw Lester in conversation with James Garner. He admonished Lester for not tending to his duties and then went back to his office. About an hour later he again observed that Lester was not on the platform and once more went to the finishing room where he found Lester in conversation with Garner. Both were standing there talking and doing nothing. In Butler's office Lester was reminded of his past warnings and when Butler realized that he had been drinking wine he got rid of him. Butler conceded that he had on other occasions sent Lester home from work because he had been drinking but had not discharged him at these times. He had not done so because Lester was still under parole and he felt responsible for him. When he learned from Lester on October 29 that his period of parole had ended he felt he no longer owed him any responsibility and was free to discharge him. With respect to the events of October 30 Butler related that he had come to the warehouse early in the morning and had awaited the arrival of the warehouse em- ployees. Neither James Garner nor Russell Lester reported at their scheduled times. When Donald Young came to the warehouse he sent him to a nearby restaurant for his breakfast. On his return Butler was about to give him an assignment but was told by Young he could not work. Butler asked what he meant by that, and Young replied that he did not know but he could not go to work and walked out. Sam Moore and Clifton Horne, a truckdriver, arrived but still no other employee made an appearance. Butler sent Moore to the restaurant for a container of coffee. When he returned he reported that James Garner was standing at the corner Moore was sent to bring him back. Butler asked Garner why he was not working and was informed that he could not go to work. He explained that "some white man" l- )Id him not to go to work. When asked who the man was Garner stated that he (lid not know. All that he could tell Butler was that he was instructed not to go to work. Butler denied that he saw Russell Lester at any time on October 30 and expressly denied having spoken to Lester in the presence of the other employees. He claimed that he did not see Russell Lester until November 1. At that time he was accompanied by Robert Lester, Vernon Ward, Vance Ward, and possibly 734-070-64-vol 145-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donald Young. Russell then asked Butler, according to the latter, why he had fired "those three fellows." Butler replied, "You know the reasons why" and this was the end of the conversation. Butler further testified that shortly after noon on October 30 James Garner and Donald Young walked into his office. He was asked by Garner whether he had been discharged and Butler assured him that this was not so. Butler reminded him that he had asked that morning whether Garner was willing to go to work and pointed out to him that he needed his services. He then directed him to start working and Garner told him that he would do so as soon as he had finished eating. Garner left, ostensibly to have his lunch, but did not return that day. Young had also asked Butler whether he had been discharged and Butler had assured him, too, that he had not. He told Young to go to work but the latter begged off on the ground that he was tired. Butler did not hear any further comment from him. All he knows is that Young walked out and did not return. Butler acknowledged that he had spoken to Russell Lester on the opening day of the hearing. He maintained that Lester had come to him and said that he was ready to go to work. Butler assertedly replied he had not been fired and could have gone to work before then. At this, Lester said he had to leave and departed. Butler testified he had seen Lester previously in January, but on this occasion Lester had merely borrowed a couple of dollars. Sam Moore testified that when he reported for work on October 30, just before his 9 a.m. starting time, he noticed all the complaining witnesses except Russell Lester and Vance Ward congregated near the warehouse. As their starting time was 8 a in. he asked why they were not working and was informed he would soon learn their "little secret." Clifton Horne drove up in his truck and the same interchange occurred between him and the group. In a few minutes Butler appeared and asked the men whether they were going to work. Garner spoke up and said they were not because "some white man" had so instructed them. George Lester then de- clared they would not work unless all were permitted to do so. Moore was then sent by Butler for coffee. On his return he encountered Garner. In an ensuing discussion Garner informed him the men were refusing to work because they were organizing a union. Moore informed Butler he had met Garner and was directed to send him to the office. He contacted Garner and delivered the message. Later that morning, as Moore and Horne were loading a truck, Garner and George Lester approached, each with stick in hand, and informed them they would permit no work to be done. Moore insisted he would work because of his family obligations. Moore denied he was in the warehouse in the evening of October 29 when, as Vance Ward testified, Butler told them they were discharged. He denied that Butler ever told him he was discharged. There is detailed testimony by Moore concerning the incidents of Saturday, Octo- ber 27, 1962, when he and Vance Ward delivered a sofa to a customer and then picked up the sofa and returned it to the warehouse on orders from Butler. In substance, Moore claimed that Ward, although not intoxicated, was nevertheless "high." Moore claimed that while making the delivery Ward stumbled, knocked over a lamp, and damaged a wall by hitting it with the sofa. Moore informed the customer to contact the Respondent about the damaged wall. He related that be- fore returning to the warehouse with the truck and sofa, Ward had insisted upon stopping at a tavern where he stayed for a substantial period. Moore waited for him outside. Butler appeared as Ward staggered out of the tavern with his arm about a girl. Butler ordered them to return to the warehouse. Moore heard Butler reprimand Ward about the many complaints he had received over his handling of merchandise and being drunk when making deliveries to customers. He threatened he was "not going to go to bat" for him any more and he was going to fire him if this were the last thing he did Moore claimed he met Russell Lester at a tavern about 3 or 4 weeks after the October 30 incidents and in their conversation Lester told him he had made a mistake when he quit working for the Respondent. He claimed also to have spoken several times to Vance Ward after his termination. On these occasions Ward asked him to try to have Butler reemploy him. Ward told Moore that so far as he knew Butler had fired him for being drunk and reporting late. Robert Lester, according to Moore, also admitted to him he had been fired by Butler for coming in late and "smelling like a whiskey barrel." Vernon Ward had told Moore he did not know why he had been fired, but spoke about "some kind of old mess or something" In his conversations with Donald Young after October 30, nothing was said by Young about having been discharged Moore denied knowing before October 30, 1962, that the seven complaining em- ployees had gotten together to form a union or that he knowingly had participated S. SWARTZ 51 with them in this activity. He claimed the first he knew about the subject was when Garner told him of it in the morning of October 30 as above recited. Vance Ward testified to the contrary. He maintained that Moore had signed the Union's au- thorization card in his presence on October 22, 1962, at Russell Lester's house, and, because Moore was unable to read or write, he inserted Moore's name, address, and social security number. This number was copied from Moore's social security card which he took from his wallet at the time. Moore, said Ward, affixed his X to the card in lieu of signature. All this was categorically denied by Moore. He related an incident in the warehouse when Vance Ward and Russell Lester had been ribbing him about his illiteracy, and had offered to teach him to sign his name in a quick lesson. In the course of the jest Moore had made an X on a blank of piece of paper. To explain how the precise number on his social security card appeared on the authorization card, Moore related another incident when Vance Ward had informed him of the loss of his own social security card and had asked Moore to show him his so he could ascertain how to obtain a new card. Moore, so he claimed, obliged and let Ward look at his card. I have noted the conflicting testimony concerning Vance Ward's misconduct while working with Moore on Saturday, October 27, 1962, particularly Ward's denial of Moore's and Butler's accounts that he had worked at all that day. There is in evidence a photocopy of the Respondent's payroll record for the pay period including October 27, which contains entries for Ward and Moore showing 2 hours' work by each that day. It was absolutely clear on the original which I inspected at the hearing that the 2-hour entry for Ward was an alteration of the original entry which was the Respondent's symbol denoting that he had not worked that day. Weisman's explanation for this conceded alteration was simply that the first entry was errone- ously made. He insisted Ward has been paid for the 2 hours' work on October 27. It is noteworthy that the payroll sheet in evidence lists 33 employees with approxi- mately 170 separate entries made for them. So far as I am able to discern, the only clear alteration on the entire sheet is the one for Ward on October 27. There seems, from my inspection of the photocopy, to be the same alteration for Moore's entry on October 27. I cannot be certain of this, however, because I do not have the original before me and no testimony was received on the point at the hearing I, therefore, make no finding that Moore's entry for October 27 was altered in the same manner as Ward's for that day. Weisman testified that on October 29, 1962, a customer came to the Respondent's retail store and complained to his assistant about a furniture delivery to her house on October 27 by an intoxicated employee. From her description, which Weisman assertedly gave to Butler, the latter identified the employee as Vance Ward. Weisman denied knowing that the warehouse employees were being organized before October 29, 1962, or that he had directed Butler to discharge them for such activity. Weisman further testified that he was present at the hearing before the Pennsyl- vania Unemployment Compensation Board of Review on James Garner's appeal from denial of unemployment compensation following his alleged separation of employ- ment by the Respondent, and that Garner had admitted to the referee that he had not been discharged but that he had been directed on August 30 to report for work, that he had been excused to go out for lunch, and that he had not thereafter returned. There was elaborate testimony by Weisman concerning complaints he assertedly received from manufacturers during a buying trip to their establishments in October 1962 about a practice at the Respondent's warehouse whereby the employees work- ing there demanded and received payments from the drivers of trucks delivering furniture to the warehouse so that they would not be delayed in the unloading of their trucks This testimony was offered to disqualify the employees involved herein for reinstatement in the event findings were to be made that they had been unlawfully discharged. In view of the findings hereinafter made, there is no necessity to recite Weisman's testimony or any other evidence relevant thereto. Before proceeding to my findings, there is one other matter which merits some attention. Butler was questioned about a criminal complaint against employee Clifton Horne which he had sworn out in 1957. Butler had denied swearing out such complaint. At the close of the hearing, counsel for the General Counsel requested and was granted leave to forward a copy of the official records which would show that such complaint had been lodged by Butler provided counsel for the Respondent stipulated the authenticity of the document. Such document was later sent to me with request that it be received as an exhibit in the case. Because counsel for the Respondent would not stipulate its authenticity, I required counsel to state whether he challenged the authenticity of the document and if not to show other valid reason for excluding it from the record. Subsequently, counsel for the Respondent sent me a letter with an accompanying affidavit signed by Butler. The letter, signed by counsel, protested receipt of the document in evidence, but nevertheless contained 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no challenge to its authenticity . I regard it as tantamount to a concession of au- thenticity . Counsel insisted at the same time that the affidavit be received in evidence with the document as it casts significant light on the circumstances sur- rounding the complaint against Horne by Butler. The affidavit , in counsel 's view, explains Butler 's denial at the hearing that he had taken the action which the documentary record shows he in fact took. 1 receive the photocopy of the com- plaint signed by Butler in evidence as Trial Examiner 's Exhibit No. la, the General Counsel 's letter to me dated April 22, 1963, relating the Respondent 's unwillingness to stipulate as Trial Examiner 's Exhibit No. lb, the order to show cause as Trial Examiner 's Exhibit No. 1c, the letter from Respondent 's counsel to me dated May 13, 1963, as Trial Examiner's Exhibit No. Id, and Butler's affidavit as Trial Exam- iner's Exhibit No. le. Counsel for the Respondent had also requested leave to send me certain docu- mentary evidence for incorporation in the record after close of the hearing. Such permission was granted on the same terms as those given the General Counsel with respect to the aforementioned document . On May 20, 1963 , I received a letter from Respondent 's counsel with an accompanying affidavit from Maurice Abrams , chair- man of the Unemployment Compensation Board of Review of Pennsylvania. These documents pertained to the appeal of James Garner from his denial of unemploy- ment compensation as mentioned above. As opposing counsel have not challenged the authenticity of the affidavit I receive it and counsel 's letter as exhibits in the case and have marked them , respectively, as "Trial Examiner 's Exhibits Nos. 2b and 2a." The General Counsel's case depends heavily upon the testimony of those witnesses who ascribed to Butler the statement on October 29 and at other times that he had discharged all seven complaining employees on Weisman 's orders because they were being organized and because Weisman was opposed to unionization of the ware- house employees . Those who testified that Butler had openly declared his unlawful reasons for discharging the warehouse employees were Russell Lester, Vance Ward, Vernon Ward, Garner, and Young. Without regard to Butler's denial and any evidence by other witnesses for the Respondent suppon ing his denial , and based only on the demeanor of the General Counsel's witnesses and the inherent character of their testimony , I am not convinced by them that Butler made the incriminating remarks they attributed to him . Not one impressed me with his candor. As I listened to them and watched them testify I perceived none of the conviction, the spontaneity, or comfort which is generally displayed ' by witnesses who in giving truthful testimony are not compelled to repeat an improvisation . Having made allowance for handicaps of speech , education , and lack of experience in speaking or testifying in the formal circumstances of a hearing , I nevertheless am left with an abiding belief that in testifying that Butler had plainly and brazenly told them they were discharged for their union activities , they were not candid. I find certain flaws in the testimony of these witnesses which fortify my decision not to credit them . Thus, after Russell Lester and Vance Ward testified without reservation that Butler 's declarations came in the course of a confrontation before all seven complaining employees , I reasonably anticipated strong corroborating testi- mony from the other employees in the group . The expected corroboration did not materialize . George and Robert Lester did not testify and the General Counsel failed to explain his failure to call them as witnesses James Garner contradicted Russell Lester and Vance Ward. According to Garner , Butler had not told the assembled employees they were laid off or discharged . Donald Young's initial account was like Garner 's in that it contained no reference to a declaration by Butler before the entire group that all were discharged . On the contrary, Young testified that Butler had told him and Garner he had nothing against them or Russell Lester and that he was asked by Butler to go to work . His subsequent testimony that Butler had made his guilt-ridden remarks before all the employees had the appearance of an afterthought that this was what he should have said in the first place. His belated testimony did not cancel his earlier account which in general coincides with Garner 's, Butler's, and , in a limited way, Moore 's versions of the events of October 30. Vernon Ward's testimony to me is worthless I cannot over- look the fact that he was a rebuttal witness who gave 'estimonv which appropriately should have been part of the General Counsel's case -in-chief . There was no explana- tion for this irregularity My impression at the hearing and now after considerable reflection is that this witness was a last-minute volunteer who was willing to say whatever he felt was necessary to support the sageine account of Butler's incriminat- ing declaration I regarded his testimony that Butler had pledged him to secrecy and divulged his intention to discharge Ward and all the other employees for their union activities as incredible nonsense, and his testimony about Butler's admission to Russell Lester and all the other complaining employees as a sheer fabrication S. SWARTZ 53 I am satisfied that Butler did, as he testified, discharge Vance Ward on October 29 for his misconduct on the preceding Saturday, October 27, 1962. I am convinced that Ward, despite his denial, did work that day with Sam Moore and that the events of that day did occur, generally, as Moore and Butler related. I am con- cerned about Moore's testimonial references to specific dates when he obviously has no capacity for such recall. This does not preclude his ability to remember events and to time them in relation to the occurrence of other events which he has the ability to recall. I believe that the detailed description of his experience with Ward on the Saturday in question was such an event which he recalled in relation to the events of the following week. In finding that Ward did work on October 27 and misbehaved as related by Moore and Butler, I have been mindful of the alteration in the Respondent's payroll record which initially showed that Ward had not worked that day. I reject Weisman's explanation that this was the mere correc- tion of an inadvertent entry. I cannot be certain why this was done. I can speculate that after Ward's performance on October 27, the Respondent decided he was entitled to no pay for the worthless time he had spent that day, but, sensing the defense to his discharge depended upon proof he did work, the record was revised to show 2 hours' employment. Whether this was so does not matter. The altered record and insufficient explanation therefor reflect poorly on Weisman's integrity, but still do not alter my conviction that Moore and Butler truthfully testified that Ward worked on October 27. I credit Butler's testimony that he was informed by Weisman on October 19 concerning the customer's complaint at the Respondent's store about Ward's intoxication when delivering the sofa to her home on October 27. In this connection I credit Weisman's testimony that the customer had complained about this incident to his assistant. I further credit Butler's testimony that he was, in effect, fed up with Ward's drinking and that this coupled with the damage to the sofa and Weisman's complaint compelled his discharge of Ward. The General Counsel makes a reasonable point in his favor over the fact that Ward's drinking was not a new experience for Butler and that other employees in- volved in the case were also notorious imbibers who in the past had not been dis- charged for drinking but had been mildly warned or disciplined. I consider this a weakness in the defense. I assume, however, that Butler's tolerance, like that of any other manager in the same circumstances, had its breaking point. He had been made to look bad by Ward's conduct and this, in my view, reasonably explains his changed attitude toward Ward and the other employees who on October 29 were discharged for drinking on the job. I credit Butler's testimony that he discharged Vernon Ward and Robert Lester because they had disregarded his orders not to go on the fire landing and to engage in idle talk during working time, and particu- larly because he smelled liquor on their breath. The General Counsel's contention that the timing of the October 29 discharges just 1 week after the seven employees had signed the Union's authorization cards denotes that the discharges were motivated by union activities was also considered in arriving at the foregoing conclusion. While this circumstance raises the normal suspicion that the discharges were occasioned by union activities, without more this suspicion may not be elevated to the level of proof sufficient to sustain the com- plaint. I have accepted Butler's explanations for the discharges of Vance Ward, Vernon Ward, and Robert Lester as reasonable. Having rejected the testimony that Butler had declared on October 30 or thereafter that the discharges were for union activities, there is no proof at all of the Respondent's union animus. The fact, as admitted by Weisman, that several years ago the Respondent's retail store em- ployees were displaced in the course of a dispute with their union does not prove the Respondent's hostility to unionization . It is reasonably inferable that this dis- pute resulted in an economic strike for contract terms and that in the course of the strike the Respondent lawfully replaced the striking employees Finally, there is no convincing proof of the Respondent's knowledge that the warehouse employees were being organized. The General Counsel theorizes that Sam Moore had signed an authorization card with the other employees and that he had passed this information either directly to Butler or that he had spoken of it to employee Clifton Horne who apvrised Butler. Although I reiect Moore's imaginative story about how his X and social security number found their way on the authoriza- tion card which I believe Ward filled out for him. I am not satisfied that the record permits a finding that somehow the Respondent learned from him about the union activities in question. The General Counsel's theory is tempting but does not exceed speculation which may not be substituted for proof. I have found that Butler did not on October 29 or 30 tell the Respondent's em- plovees he had discharged them for their union activities. I also find that he did not tell Russell Lester in their later meetings that he refused to reemploy him because he had not revealed his union activities and because he wanted to get into 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union. In so finding I credit Butler over Lester because I regard him on the basis of all factors in the case, including demeanor, as a more reliable witness. Having credited Butler over Lester as well as Vance Ward, I find it unnecessary to resolve the conflicts between these employees and Sam Moore about the alleged admission by Lester that he had quit his job and by Ward that he had been fired for drinking. I have found that Butler discharged Vance Ward, Vernon Ward, and Robert Lester for cause on October 29. I further find that George Lester was employed until October 27 as a temporary employee and that he was not denied employment on October 29 or 30, or thereafter, because of his union activities. His temporary employment, as credibly related by Butler, had terminated on October 27, and there is no evidence that he sought employment thereafter which was denied to him for any reason. I credit Moore's testimony that Garner and George Lester had tried to prevent Moore and Clifton Horne from working on October 30 and that Lester had stated no one would be permitted to work unless all employees were allowed to do so. I credit Butler's testimony, supported by testimony of Young and Garner, that he had instructed these two employees to go to work on October 30 and that each had offered an excuse for not doing so. I reject the inconsistent and implausible testi- mony of these employees that they returned the next day and were told by Butler he had orders from Weisman to discharge everyone. Summarizing my findings, I conclude that when the three warehouse employees were discharged for cause on October 29 the others decided to put pressure on Butler to reinstate them by withholding their services. In effect they were economic strikers who could lawfully be replaced. Garner, a furniture finisher, was replaced by another finisher hired by Butler on October 30. Two other warehouse employees were hired on October 30 and 31. These two employees are no longer employed because of curtailment of the Respondent's needs. Absent evidence that the strik- ing employees had sought and were for unlawful reasons denied reinstatement, there is no basis for a finding in this case that the Respondent in violation of Section 8(a)(3) of the Act discharged or otherwise terminated the employment of the com- plaining employees and thereafter unlawfully refused to reinstate them. Because the record as a whole does not preponderate in favor of a finding that the Respondent had engaged in such conduct, as alleged in the complaint, I shall recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. Sarah Swartz, Herman Weisman and M. James Weisman d/b/a S. Swartz is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 169, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of the complaint that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act have not been sustained. RECOMMENDATION It is recommended that the complaint be dismissed in its entirety. Lyon , Incorporated and Aluminum Workers International Union, AFL-CIO Lyon , Incorporated and Aluminum Workers International Union, AFL-CIO. Cases Nos. 96-CA-1444 and 26-PC-1849. November 1911963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On July 17, 1963, Trial Examiner Jerry B. Stone issued his Inter- mediate Report in the above-entitled proceeding, finding that the 145 NLRB No. 3. Copy with citationCopy as parenthetical citation