Silverman's Men's Wear, Inc.

National Labor Relations Board - Board Decisions

Aug 6, 1982

263 N.L.R.B. 191 (N.L.R.B. 1982)

SILVERMAN'S MEN'S WEAR, INC.
Silverman's Men's Wear, Inc. and General Ware-
housemen and Employees' Union Local 636 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 6-CA-13326
August 6, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On August 4, 1980, the Board issued a Decision
and Order in this case,' finding that Respondent
had violated Section 8(a)(5) and (1) of the Act, as
amended, by refusing to bargain collectively with
the Union. On August 6, and as amended on
August 17, 1981, the United States Court of Ap-
peals for the Third Circuit denied enforcement of
the Board's Order and remanded the case for a
hearing on Employer's Objection 2 in Case 6-RC-
8448.2 On October 28, 1981, pursuant to the court's
order, the Board issued an Order Reopening
Record and Remanding Proceeding to Regional
Director for Further Hearing. On January 28,
1982, following a hearing, Administrative Law
Judge Jerry B. Stone issued his Decision in this
proceeding, finding that the Union had not en-
gaged in the objectionable conduct alleged in Em-
ployer's Objection 2 and recommending that the
Board's Order in this proceeding be reiterated, that
the prior certification be continued in effect, and
that Objection 2 be overruled. Thereafter, Re-
spondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions3 of the Administrative Law Judge and
to adopt his recommended Order.
250 NI.RB 1388
No 80 2574 { 1980).
Respondent has excepted to certain credibility findings made by the
Administrative Laws Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are Incorrect. Standard Dry Wall Products
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Respondent has excepted to the Administrative Law Judge's refusal to
allow testimony to demonstrate post-election changes in the bargaining
unit. The Administrative Law Judge sustained the General Counsel's ob-
jections to such testimony on the ground that any issue of change in the
bargaining unit was beyond the scope of the hearing. We agree. It is well
established, furthermore, that, absent special circumstances, there is an ir-
rebuttable presumption that the majority status of a certified union con-
tinues for I yeat from the date of the certification. As Respondent's re-
263 NLRB No. 23
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board affirms its Order as contained in its
original Decision and Order issued August 4, 1980,
in this proceeding.
fusal to bargain occurred dunng the certification year. this presumption is
clearly applicable. Moreover, even if Respondent's refusal to bargain had
not occurred during the certification year. the Board has long held that
the factor of employee turnover does not establish that the Union has lost
its majority status. Accordingly, we find no merit in Respondent's con-
tention.
We also find no merit in Respondent's contention that it was denied
due process by the Administrative Law Judge's ruling that Respondent
might not cross-examine Baird about organizing campaigns other than the
one involved in this proceeding. Respondent's opportunity to test Baird's
memory was ample in the context of the issues directly involved in the
instant proceeding. We find that the Administrative Law Judge did not
abuse his discretion by preventing Respondent from introducing collater-
al issues into this proceeding.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: The peti-
tion in Case 6-RC-8448 was filed on March 30, 1979.
Thereafter, on May 31, 1979, an election was held pursu-
ant to a Stipulation for Certification Upon Consent Elec-
tion at Respondent's distribution warehouse in Warren-
dale, Pennsylvania. The Petitioner, General Warehouse-
men and Employees' Union Local 636 a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, won 29 to 23. Respondent filed
objections to the election, including an objection that the
Union's secretary-treasurer, Robert Baird, had infected
the election atmosphere with religious prejudice by his
remarks at a union meeting concerning Respondent's
vice president, Mark Silverman. Without an objections
hearing, the Regional Director recommended that the
Board overrule the objections and issue a certification of
the Union as the collective-bargaining representative of
the employees involved. The Board adopted the recom-
mendation. After certification, the Union demanded that
Respondent bargain collectively pursuant to Section 8(d)
of the Act. Respondent refused to bargain.
On April 3, 1980, the Charging Party (the Petitioner in
Case 6-RC-8448) filed an 8(a)(5) and (1) unfair labor
practice charge. On April 23, 1980, the Regional Direc-
tor for Region 6 issued on behalf of the National Labor
Relations Board an unfair labor practice complaint in
Case 6-CA-13326. Such complaint alleged in effect that
Respondent had refused to bargain with the Union (the
Charging Party in Case 6-CA-13326 and the Petitioner
in Case 6-RC-8448). Thereafter, on August 4, 1980, the
National Labor Relations Board, in a decision reported
at 250 NLRB 1388, granted a motion for summary judg-
ment, found that Respondent had violated Section 8(a)(5)
and (I) of the Act by refusing to bargain with the Union,
and issued a remedial order requiring Respondent to bar-
gain with the Union upon request.
191
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, on August 6 and 17, 1981, the U.S. Court
of Appeals for the Third Circuit refused to enforce the
Board's Order in Case 6-CA-13326 as referred to above
and remanded the proceeding to the Board for hearing
on the Employer's Objection 2 in Case 6-RC-8448.'
On October 28, 1981, the National Labor Relations
Board remanded Case 6-CA-13326 to the Regional Di-
rector for Region 6 of the National Labor Relations
Board for the setting of a hearing on Objection 2 in Case
6-RC-8448. On November 5, 1981, the Regional Direc-
tor for Region 6 of the National Labor Relations Board
duly set this proceeding for hearing on November 23,
1981.
The issues as set for hearing were limited to a determi-
nation of the merits of the allegations presented in the
Employer's Objection 2 in Case 6-RC-8448.
On November 23, 1981, all parties were afforded full
opportunity to participate in the proceeding. Briefs have
been filed by Respondent and by the Charging Party and
have been considered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINDINGS OF FACT2
THE OBJECTIONS ISSUE
Objection 2
The Employer's Objection 2 is as follows:
At the same meeting called by the Union, the
union representative, Mr. Robert Baird, while lead-
ing and conducting the meeting, resorted to inflam-
matory propaganda on matters which in no way re-
lated to the choice before the voters. The petitioner
interjected irrelevant racial and religious appeals at
the meeting attended by this large group of eligible
employees.
His action was a deliberate attempt to provoke
the employees, through racial and religious remarks
which were defamatory toward the Employer,
shortly before the election. It was an effort to over-
stress and exacerbate racial and religious feelings by
irrelevant, inflammatory appeal.
The parties presented four witnesses with respect to
the issues presented by the Employer's Objection 2. Such
witnesses were Tomiann Boots, Amy L. Thorpe, Loretta
Manges, and Robert E. Baird. A consideration of the de-
meanor of the witnesses and the substance of the wit-
nesses' testimony persuade that Robert E. Baird was the
only witness presented whose testimony revealed itself to
be reliable as to whether Baird engaged in objectionable
conduct as alleged. The overall facts reveal that Boots',
Thorpe's, and Manges' testimony largely alluded to "im-
pression" and did not reveal in fact what was said at the
Set out later herein in full detail.
2 The findings of fact and conclusions of law relating to the Employ-
er's business operations and commerce and to the status of the Union as a
labor organization, as set forth in the Board's decision in Silverman's
Men's Wear, Inc., 250 NLRB 1388 (1980), are incorporated herein by ref-
erence.
union meeting on May 25, 1979. In essence, Boots'3 testi-
mony at the hearing revealed no independent recollec-
tion that Baird had, at the union meeting wherein the al-
leged objectionable conduct had occurred, used the
word "Jew" in referring to Mark Silverman. However,
Boots, on June 26, 1979, subscribed and swore to an affi-
davit given to the NLRB containing the following state-
ments:
I only attended the Friday May 25 union meeting
& not the May 30 meeting. I took notes & had a list
of questions but I through [sic] them away. Baird
had contracts from Penney's, & Gimbels. I do not
remember him inviting anyone to look at the con-
tracts. I cannot be sure if someone asked to look at
the contracts. He said that because we were being
paid so low they were going to lower our initiation
fees from $30 to $10. Baird had stated, with regard
to employees at Penney's & Gimbels, that they
were doing a lot better than we were for the same
jobs. He did quote hourly wage figures but I do not
recall what they were. I do not recall him quoting
any benefits. I asked him aren't we only going to
get what the company wants to give us & he said
no it depends on how long you people want to hold
out for. I remember somebody asking about wheth-
er we will be making enough money to pay the
dues but I do not remember specifically what he an-
swered. I remember Baird saying the word "Jew." I
am sure that he was referring to the Silvermans but
I do not remember the context of the statement or
what the rest of the phrase was. I got the impres-
sion, however, that the comment was derogatory.
He also said that we were lower paid than people
on welfare. (With regard to this statement I do not
know if he was referring to their actual payments or
their payments plus benefits.)
Amy L. Thorpe, another witness presented by the Em-
ployer, attended the May 25, 1979, union meeting.
Thorpe testified that Baird did not use the word "Jew."
Thorpe testified, however, that Baird stated that a union
was needed because "we work for those kind of people."
Thorpe also testified to the effect that such remark to the
effect that "we work for those kind of people" occurred
around the time that Baird was comparing Silverman's
with J. C. Penney's, Homes, and Gimbels. Exactly who
raised the question of whether the word "Jew" or
"Jewish" was used by Baird on May 25, 1979, is not re-
vealed. In any event Thorpe and several other employ-
ees later discussed the question of whether such words
were used and decided that they were not used. Thorpe
in her affidavit to the National Labor Relations Board
set forth that "I never heard any union representative
refer to the Silvermans as stingy Jews and I never heard
them say anything about their religious or ethnic back-
ground."
Loretta Manges was the only witness presented by the
Employer who supports a contention that the word
3 At the time of the events in 1979, Boots was unmarried and known
as Tomiann Van Dyke.
192
SILVERMAN'S MEN'S WEAR, INC.
"Jew" or "Jewish" was used by Baird on May 25, 1979.
Manges testified that such words were used, one or the
other. Manges, however, did not know the context in
which such word ("Jew" or "Jewish") was used.
Manges' pretrial affidavit, dated June 1979, does not
reveal that such words-"Jew" or "Jewish"-were used.
Rather, Manges' pretrial affidavit set forth as follows-
"At no time during the May 25 or May 30 meeting did
Baird or any other union representative call Silverman
any name or refer to his religious or ethnic background."
On cross-examination, Manges' explanation was not per-
suasive as to the inconsistency between her affidavit
given to the NLRB in 1979, and a statement given to the
Employer's attorney in 1981 and her testimony in this
proceeding.
The sum of Boots', Thorpe's, and Manges' testimony,
when considered without the testimony of Baird, reveals
itself in composite effect to be unreliable to establish that
Baird had made racial or religious slurs about the Silver-
mans. Rather, Thorpe's, Boots', and Manges' testimony is
revealed to be based upon impression. Considering the
testimony concerning comparing the Employer's benefits
and wages with welfare benefits, such impression could
simply be a conclusionary deduction by Thorpe, Boots,
and Manges from such comparisons. 4
Finally, Baird, who impressed me as a thoroughly
honest, frank, and forthright witness, testified in detail as
to what he told employees at the May 25, 1979, union
meeting. Baird emphatically denied that he used any
words or statement concerning the Silverman's race, reli-
gion, or anything having to do with ethnic background. I
found Baird to be a completely credible, objective, and
reliable witness. I credit his testimony in denial that he
made racial or religious slurs concerning the Silvermans
at a union meeting on May 25, 1979.
4 I note that Manges testified that the word "Jew" or "Jewish" was
used. Manges' testimony otherwise was not persuasive that such recollec-
tion was reliable.
Conclusion
Based upon the foregoing, it is concluded and found
that the Union has not engaged in objectionable conduct
as alleged in Employer's Objection 2. It will be recom-
mended that Employer's Objection 2 (Case 6-RC-8448)
be overruled.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Conclusions of Law set forth by the Board in
Silverman's Men's Wear, Inc., reported at 250 NLRB
1388, are hereby incorporated by reference and reiterat-
ed.
2. The Union (General Warehousemen and Employ-
ees' Union Local 636 a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America) has not engaged in objectionable conduct (as
alleged in Objection 2 by the Employer in Case 6-RC-
8448) and has not thereby engaged in conduct which in-
terfered with the conduct of the election, or the employ-
ees' exercise of a free and untrammeled voting right in
such election, held in Case 6-RC-8448 on May 31, 1979.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Sections
10(c) and 9(a) of the Act, I hereby issue the following
recommended:
ORDER s
1. The Board's Order as set forth in Silverman's Men's
Wear, Inc., reported at 250 NLRB 1388, is hereby reiter-
ated.
2. The prior certification in Case 6-RC-8448 is contin-
ued in effect.
3. The Employer's Objection 2 in Case 6-RC-8448 is
overruled.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
193