Stanislaus Imports, Inc.

National Labor Relations Board - Board DecisionsNov 26, 1976

226 N.L.R.B. 1190 (N.L.R.B. 1976)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stanislaus Imports , Inc. and International Longshore- men's and Warehousemen's Union, Local 6. Cases 20-CA-11014 and 20-RC-13101 November 26, 1976 DECISION, ORDER , AND CERTIFICATION OF RESULTS BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On July 12, 1976, Administrative Law Judge Mar- tin S. Bennett issued the attached Decision in this proceeding. Thereafter, the Union filed exceptions. 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 has decided to affirm the rulings, findings,' and conclu- sions,2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and hereby is, dis- missed in its entirety. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Long- shoremen's and Warehousemen's Union, Local 6, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. The Charging Party has excepted to certain credibility findings made by the Administrative Law 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 convinc- es us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 In adopting the Administrative Law Judge's conclusion that the evi- dence does not support the Union's objections and 8(a)(I) allegations, we find it unnecessary to pass or rely on his analysis of the cases cited by him MEMBER PENELLO, concurring: I concur in the decision to dismiss the complaint and certify the results of the election because, based on the credited testimony, there is no evidence to support the Union's objections and 8(a)(1) allega- tions. However, contrary to my colleagues, who pre- fer not to comment on the Administrative Law Judge's legal analysis, I wish to reiterate my agree- ment with American Federation of Musicians, Local 76 (Jimmy Wakely), 202 NLRB 620 (1973), which has not been reversed and whose principles have been endorsed by the judiciary.' These cases wisely hold that the General Counsel should exercise his discre- tion under Section 3(d) of the Act to refuse to prose- cute violations of minor or isolated character. In my view, processing such cases requires a considerable expenditure of the Board's time and limited re- sources in seeking to rectify situations of no real mo- ment, and thus detracts from the efficiency and care with which cases involving significant violations of the Act can be handled. J N L R B v Columbia Typographical Union No 10!, International Typo- graphical Union of North America, AFL-CIO [The Evening Star Newspaper Co and The Washington Daily News], 470 F 2d 1274 (C A D C, 1972), deny- ing enforcement of 193 NLRB 1089 (1971) And see the comments of the court in Dallas Mailers Union, Local No 143, international Mailers Union [Dow Jones Co] v N L R B, 445 F 2d 730 (C.A D C, 1971), enfg 181 NLRB 286 (1970), and Truck Drivers, Oil Drivers, Filling Station and Plat- form Workers Local No 705 of the International Brotherhood of Teamsters [Johns-Manville Products Corporation] v N L R B, 509 F 2d 428 (C A D C, 1974). enfg 205 NLRB 387 (1973) DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Administrative Law Judge: This matter was heard at San Francisco, California, on March 16, 1976. The complaint, issued February 20 and based on charges filed January 20 and February 17, 1976, by Inter- national Longshoremen's and Warehousemen's Union, Lo- cal 6, herein the Union, alleges that Respondent, Stanislaus Imports, Inc., has engaged in unfair labor practices within the meaning of Section 8(a)(I) of the Act. Briefs have been submitted by the parties. Consolidated with the foregoing were objections to an election held in Case 20-RC-13101. The Union filed a pe- tition on October 2 and, pursuant to a stipulation for certi- fication upon consent election, an election was duly held on December 5, 1975. The Union lost the election by a vote of 21 to 24 with two challenged ballots not involved herein. The Union did file objections to conduct affecting this election on December 10, 1975, but on February 13, 1976, it withdrew same, this approved on February 18, 1976. Nevertheless, the cases were consolidated on February 20, 1976. Upon the entire record in the case, and from my obser- vation of the witnesses, I make the following: 226 NLRB No. 184 STANISLAUS IMPORTS, INC FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Stanislaus Imports, Inc., is a California corporation which maintains its principal office at San Francisco, Cali- fornia, where it is engaged in the import and distribution of merchandise . It annually purchases and receives goods and materials valued in excess of $50 ,000 directly from sup- pliers located outside that State. I find that the operations of Respondent affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. IL THE LABOR ORGANIZATION INVOLVED International Longshoremen's and Warehousemen's Union, Local 6, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. Sequence of Events The Union commenced organizational activities of Re- spondents' warehouse employees and, pursuant to a repre- sentation petition duly filed, an election was conducted among these employees on December 5, 1975, which the Union lost 24 to 21 with several challenged ballots not involved herein. The instant matter involves several acts of alleged interference, restraint, and coercion which, it is claimed, also warrant a new election. Jerry Polcer testified on behalf of the General Counsel that he was laid off on or about December 17, 1975, He further testified that about 3 or 4 weeks before the election, Vice President Gordon Masterson summoned him to the latter's office Polcer testified, inter alga, that Masterson asked him how he felt about unions in general, and whether he thought that a union would help Respondent. Polcer testified that he responded he was in favor of unions, but that he also enjoyed employers which were not organized. Polcer also admitted that he had refused on the previous day to confer with counsel of the Charging Party. Masterson, in turn, testified that he spoke once with Pol- cer in October. Polcer initiated the talk in the hallway and stated how much he enjoyed working for Respondent. Masterson had been on duty for many hours, stated that his feet were tired and suggested that they sit down in an adjacent office. Polcer then stated that his girl friend was pregnant, that he was no longer on welfare or receiving food stamps, and that he could use more money. Master- son, not the supervisor of Polcer,' said that Polcer was aware of Respondent's current problems and that he "could do nothing for you now." He testified further that both knew that he was referring to the impending election. Masterson further testified that he had been instructed that no raises could be given because of the impending election, that he did not question Polcer as to his vote and 1 His supervisor was Gary Kennedy, who would normally recommend a raise for him 1191 that the words "union" or "election" were not used by him. Masterson, as he testified, promptly relayed this conver- sation to President Siou of Respondent, at work in a near- by office, who cautioned him not to speak to anyone in this preelection context. Counsel for Respondent had met three times in October and November with the supervisors and had instructed them as to what they could or could not do in this situation, including instructions that they could not campaign against the Union or question employees wheth- er they were in favor of the Union. Masterson also had been cautioned by President Siou at weekly staff meetings to be "careful" as to what he did or said and that all infor- mation should emanate from the office of Siou. I have credited the testimony of Masterson below in- volving another incident and do as well herein. To me, he was an impressive witness with no ostensible axe to grind and presented his testimony in a clear and forthright man- ner, contrary to the vigilant demeanor of the witnesses for the General Counsel. Michael Lunceford entered the employ of Respondent in March 1975 and resigned on February 20, 1976. Employed in various departments, he was made a supervisor in the shipping department over six employees on or about Sep- tember 10, 1975, and was in that position for approximate- ly I month. He resigned as a supervisor early in October, approximately 2 months before the election and resumed a rank-and-file status. His resignation resulted from the below-described se- quence of events. Lunceford was aware that the Union had filed a representation petition referred to above. The day prior to his resignation, Respondent's attorney, John Cook, had met with the supervisors and advised them as to the approach management should assume in this situation, which I find to be impeccable. The following day Lunce- ford, as he testified, told Vice President Gordon Masterson that he was resigning as a supervisor because he could not, in good conscience, support management's side in the elec- tion campaign. The record also amply demonstrates that Lunceford had on several occasions advised President Siou of his prounion sympathies. Lunceford further testified that about I week after his resignation, Masterson initiated a conversation with him at his work table, discussing an automobile that Masterson allegedly had purchased for the price of $400. At this point, one John Wilkinson went to work at the next worktable, and Masterson, according to Lunceford, asked the latter how Wilkinson felt about the Union. Lunceford responded that all the employees were concerned about wages and benefits. Lunceford claimed that Masterson then stated that it was against the law for him to speak out, but that if some- one "unofficial" told the men to "stick with Stan" (Siou] things would be taken "care of" after the election. Lunce- ford, hardly intimidated, vaguely responded that Respon- dent had infringed on announced-employer policies and Masterson allegedly again stated that if someone "unoffi- cial" told the employees that they would receive more money, things would be much better Masterson, in turn, testified, and I find, that he spoke with Lunceford on one occasion. He admittedly asked Lunceford "is everything quiet" and the latter responded, 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "I don't hear anything." Masterson conceded that he was referring to any possible problems involving the Union. He flatly denied asking how anyone, including Wilkinson, would vote. He also testified that Respondent had pur- chased an automobile for his use and that he, personally, had never purchased an automobile for the price of $400. Respondent aptly points out, and I agree, that if Respon- dent sought to enlist the services of an agent provocateur Lunceford was hardly the man, especially as both Presi- dent Siou and Vice President Masterson were well aware of his prounion sympathies. He had resigned as a supervisor because of his prounion beliefs and both the president and vice president were well aware thereof. It begs credulity that Lunceford would have been so approached. For these reasons, I do not credit the testimony of Lunceford. Greg Baumbach entered the employ of Respondent in June 1975 and was discharged on or about February 2, 1976. Originally hired as a van driver, about 2 months later he was transferred to the post of order picker. Baumbach testified that about 2 or 3 months prior to the election Shipping Department Supervisor Judson Moon spoke with him. It may be noted that Moon is not his supervisor and that Baumbach's roommate, Gary Kenne- dy, was his supervisor. Indeed, according to Baumbach, Kennedy favored the Union and desired Baumbach to vote in favor thereof. According to Baumbach, Moon asked him what he thought of the Union. Baumbach replied that the Union had conducted its campaign poorly and that Respondent had conducted itself "poor." In response to a question, Baumbach responded that the Union could re- solve some issues and that, in unspecified respects, the Union would not resolve same True, Baumbach is an ex-employee, presumably not un- der the aegis of Respondent and therefore free to testify without the threat of employer reprisal. This has been con- sidered by me. Nevertheless, the case on behalf of the Gen- eral Counsel simply does not stand up, let alone his burden of prevailing on a preponderence of the evidence. I deem it highly unlikely that a vice president of Respon- dent, aware of the prounion sympathies of Lunceford, leading to his resignation as a supervisor, would endeavor to enlist him as a candidate to originate an antiunion cam- paign. Stated otherwise, he was the least likely person to be so approached. I therefore credit Masterson herein. By the same token, Moon impressed me as an objective witness, without an antiunion bias, who related the facts as he re- called them. I am convinced, on a preponderance of the evidence, that Supervisors Masterson and Moon obeyed their in- structions not to query employees concerning their union activities. It is obviously true that the testimony of ex-em- ployees, not under the control of an employer, is entitled to closer scrutiny than that of present employees. But I find this, on the entire record, unimpressive, and I credit the witnesses for Respondent for the reasons stated above. At this point, it should be noted that the Board has ap- parently shifted its emphasis on so-called minimal viola- tions of interference, restraint, and coercion. In 1973, in American Federation of Musicians, Local 76, AFL-CIO (Jimmy Wakely Show), 202 NLRB 620, the Board held that a remedial order would be of little significance because the attacked conduct was "so minimal." This view was sup- ported by Bomber Bait Company, Inc., 210 NLRB 673 (1974), holding one antiunion comment too isolated to warrant a finding of a violation of the Act. See also Phillips Industrial Components, Inc., 216 NLRB 106 (1975), holding likewise as to one act. It would appear that the Board has recently departed from this view, all reversing the Administrative Law Judge. Thus, in Carolina American Textiles, Inc., 219 NLRB 457 (1975), it found a single act of interrogation to be violative of Section 8(a)(1) of the Act. See also Texberry Container Corporation, 217 NLRB 58 (1975); Hanna Building Corpo- ration, 223 NLRB 703 (1976); and General Iron Corp., 218 NLRB 770 (1975). See also Florida Steel Corp., 224 NLRB 45 (1976). In sum, I see no evidence of general hostility to the Union. And, in an industrialized community such as San Francisco, and this is reflected further in the testimony of former employees, I do not detect a remote resemblance of their being coerced by Respondent. Perhaps a reference to a Decision of the Court of Ap- peals of the Second Circuit is in order. In Bonnie Bourne an individual d/b/a Bourne Co v. N.L.R.B., 332 F.2d 47 (1964), the court held that the trier of fact in a situation as this should consider (1) a history of employer hostility and discrimination; (2) whether the information sought could lead to individual discrimination; (3) how high on the em- ployer hierarchy was the questioner; (4) the location of the interrogation; and (5) was there evidence that the interro- gation inspired fear on the part of the employee. These factors are not really met herein. I therefore find no viola- tions of Section 8(a)(1) of the Act. In view of the foregoing considerations, I shall recom- mend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Stanislaus Imports, Inc., is an employer whose opera- tions affect commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Longshoremen's and Warehousemen's Union, Local 6 is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The complaint is dismissed in its entirety. I FURTHER RECOMMEND that the objections to the election in Case 20-RC-13101 be overruled and that the results thereof be duly certified. 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"