Alcoholics Anonymous World Services, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1988

288 N.L.R.B. 582 (N.L.R.B. 1988)

582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alcoholics Anonymous World Services, Inc. and
Gerald Evans and Anibal Andujar. Cases 2-
CA-21790 and 2-CA-21792
April 22, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On October 20, 1987, Administrative Law Judge
Arthur A. Herman issued the attached decision.
The General Counsel filed exceptions and a sup=
porting brief, and the Respondent filed an answer-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 1 and
1 The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find that *bile the
judge made several factual misstatements concerning inconsistencies be-
tween the testimony of the General Counsel's witnesses at the hearing
and their respective affidavits given to a Board agent, there is insufficient
basis to reverse the judge's findings.
Specifically, concerning employee Anibal Andujar, the judge found
that contrary to Andujar's testimony, his affidavit made no reference to
Shipping Department and Mailroom Manager Mike Berg asking him
whether he attended union meetings, or where the meetings were held,
or who else attended the meetings. Andujar's affidavit is in evidence. It
shows that, consistent with his testimony, Andujar stated that Berg some-
times asked him if he was going to a union meeting that night. However,
as the judge found, Andujar did not mention in his affidavit either that
Berg asked him where the meetings were held or who attended.
At another point in his decision the judge found that while accusations
regarding unlawful interrogation, threats, and intimations of surveillance
by Berg were elicited at the hearing from Andujar and employees Gerald
Evans and Leo Alexander, "not one of these witnesses included these al-
legations in his affidavit to the Board." Concerning Andujar, the judge is
in error regarding the one incident of interrogation noted above. The
judge also ignored statements in Andujar's affidavit consistent with his
testimony that Berg, inter alia, threatened more onerous working condi-
tions and castigated lam for being disloyal. However, the judge correctly
found that there is nothing in the affidavit with respect to the other inci-
dents of alleged interrogation mentioned above, as well as an alleged
threat of discharge. In addition, while Andujar testified at the hearing
that in the course of a conversation about the Union, Berg said, "Andu-
jar, don't listen to the horse's ass, listen to the head," this statement does
not appear in Andujar's affidavit. Concerning Evans, it is impossible to
determine from the record whether the accusations he made at the hear-
mg regarding interrogation, threats, and intimations of surveillance by
Berg appeared in Evan's affidavit, because Evans was not challenged on
cross-examination regarding such differences between his testimony and
his affidavit on these matters and his affidavit is not in evidence. Con-
cerning Alexander, the record establishes that Alexander gave two affida-
vits to the Regional Office, one during the investigation of a related rep-
resentation case and one during the investigation of the instant case. Only
the affidavit given in the representation case is before us in this case. The
judge's statement is correct to the extent that the affidavit in evidence,
the one given during the investigation of the representation case, does not
contain any reference to the testimony he gave at the hearing regarding
interrogations and threats by Berg. On cross-examination, Alexander was
asked about inconsistencies between statements in the unfair labor prac-
.conclusions2 and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
nee case affidavit and his testimony on the subject of Berg's questions
about attending union meetings. The record does not reveal whether tes-
tunony given by Alexander at the hearing regarding threats and other in-
terrogations by Berg are mentioned in this unfair labor practice case affi-
davit. Thus, as we are unable to confirm the judge's statement that Alex-
ander had not included these allegations in the affidavit(s) he gave, we do
not rely on this aspect of the judge's credibility analysis. However, given
the inconsistencies that do exist and, more importantly, the judge's de-
meanor-based crediting of Berg over the General Counsel's witnesses, we
adopt the judge's credibility findings.
2 The General Counsel excepts to the judge's failure to discuss or pass
on the complaint allegation that the Respondent violated Sec. 8(a)(1) and
(3) of the Act by imposing more onerous and rigorous terms and condi-
tions of employment on employees after the advent of the Union by more
strictly enforcing its attendance policy of "red-circling" the late arrival of
employees on its timesheets. We have reviewed the evidence, including
the tnnesheets of the shipping and receiving department and mailroom,
and find the evidence insufficient to show that there was in fact any sig-
nificant difference in the Respondent's enforcement of its attendance
policy. Accordingly, we dismiss this complaint allegation.
Gwynne A. Wilcox, Esq., for the General Counsel.
Arthur R. Kaufman, Esq. (Kaufman, Franlc, Schneider