Benjamin F. Rich Co.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 457 (N.L.R.B. 1971)

BENJAMIN F. RICH CO. 457
Benjamin F. Rich Company and United Electrical, Ra-
dio and Machine Workers of America and Interna-
tional Brotherhood of Pulp , Sulphite and Paper Mill
Workers, Plastic and Machine Local 770, Party to
the Contract
Benjamin F. Rich Company and Lydia Cruz. Cases
4-CA-5343 and 4-CA-5384
June 23, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On March 11, 1971, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that Respondent had not engaged
in the unfair labor practices alleged in the consolidated
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's Deci-
sion and a brief in support thereof.
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 powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that the com-
plaint herein be, and it hereby is, dismissed in its en-
tirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: United Elec-
trical, Radio and Machine Workers of America, referred to
herein as the Charging Party or UE, filed an unfair labor
practice charge against Benjamin F. Rich Company, referred
to herein as Respondent, in Case 4-CA-5343 on September
9, 1970,' and amended it on November 27. Lydia Cruz filed
an unfair labor practice charge against Respondent in Case
4-CA-5384 on October 20. On November 30 the General
Counsel of the National Labor Relations Board, by the Re-
gional Director for Region 4 (Philadelphia, Pennsylvania),
consolidated the two cases for hearing and issued a con-
solidated complaint alleging that Respondent violated Sec-
tion 8(a)(3),(2), and (1) of the Act by recognizing Interna-
tional Brotherhood of Pulp, Sulphite and Paper Mill
Workers, Plastic and Machine Local 770, referred to herein
as the Party to the Contract or Local 770, on or about August
11 when Local 770 did not represent a majority of Respond-
ent's employees and by thereafter entering into a collective-
bargaining agreement requiring membership in Local 770 as
a condition of employment and by discharging Mrs. Cruz on
or about October 16. Respondent's answer, duly filed, admit-
ted certain allegations of the complaint and denied others,
including the allegation that it had committed any unfair
labor practices.
Pursuant to due notice, hearing was held before me in
Wilmington, Delaware, on January 19, 20, 21, and 22, 1971.
The issues litigated were (1) whether Local 770 represented
a majority of Respondent's employees when Respondent
recognized Local 770 on August 11 and (2) why Respondent
discharged Mrs. Cruz on October 16. All parties appeared
and were given full opportunity to participate, to adduce
relevant evidence, to examine and cross -examine witnesses, to
argue orally, and to file briefs. Respondent's motion to dis-
miss, made at the close of the hearing, is disposed of herein.
Upon the entire record,2 including a brief filed by the General
Counsel, and from my observation of the demeanor of the
witnesses while testifying under oath, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged at its
plant in Stanton, Delaware, in the manufacture of storm
windows. During the year prior to the issuance of the con-
solidated complaint in these cases it sold and shipped
products valued in excess of $50,000 directly to customers
outside the State of Delaware from its plant in Stanton. On
the basis of these admitted facts, I find that Respondent is
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II THE LABOR ORGANIZATIONS INVOLVED
The consolidated complaint alleges, the answer admits,
and I find that UE and Local 770 are labor organizations
within the meaning of Section 2(5) of the Act.
We find that the statement in the first sentence of fn. 4 of the Trial
Examiner's Decision, following the reference to the Bernhard-Altmann
Texas case, is supported by the record. The meaning of the rest of the
footnote is not clear even as corrected by the Trial Examiner's erratum
dated April 8, 1971, but, in any event, the Midwest Piping principle was
neither alleged nor litigated, and we do not rely on the remainder of fn. 4.
Dates are 1970, unless otherwise indicated.
I have marked as Trial Examiner's Exhibit 1 and placed in the record
a telegram which I received a few minutes after hearing closed in which
counsel for the Charging Party renewed his motion, denied by me on Janu-
ary 21, for a continuance until January 25 on the ground that he could not
be present on January 22.
191 NLRB No. 89
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PRACTICES
A. Case 4-CA-5343
1. Facts
UE began organizing Respondent's employees in late July.
As part of its campaign it leafleted the plant several times.
Local 770 also sought to organize Respondent's employees.
The record does not reveal whether it resorted to leaflets in
the organizing stage of its campaign. Frank Chaiken, Re-
spondent's president, became aware that efforts were being
made to organize the employees although not which union or
unions were involved. Consequently, around August 1, he
consulted Jacob Kreshtool, a Wilmington attorney, and re-
tained him to represent Respondent in connection with labor
matters.
Gene Derrickson is an international representative of the
International Brotherhood of Pulp, Sulphite and Paper Mill
Workers. Prior to August 10, he and Kreshtool had crossed
swords in a couple of cases in which Kreshtool had repre-
sented companies whose employees Local 770 bad sought to
organize. Both Derrickson and Kreshtool are active in Dela-
ware State politics. On the evening of Monday, August 10,
Kreshtool visited Derrickson's home on political business.
Derrickson happened to mention that he was engaged in a
campaign to organize Respondent. Kreshtool replied that he
represented Respondent. Derrickson said he demanded
recognition. Kreshtool asked if he was kidding. Derrickson
assured Kreshtool he was serious, adding that he would be in
touch with Kreshtool in a day or two.
Later that evening, Kreshtool telephoned Chaiken and told
him what had happened. Chaiken told Kreshtool his primary
concern was that Respondent's production not be hampered
by any labor troubles. Chaiken gave Kreshtool authority to
do whatever he thought was in Respondent's best interest.
On the morning of Tuesday, August 11, 43 authorization
cards signed by Respondent's employees and designating Lo-
cal 770 as their bargaining agent were delivered to Kresh-
tool's office. On that day, there were 73 hourly rated em-
ployees, excluding office clerical employees, guards,
watchmen and supervisors,' at Respondent's plant. (Of these,
considerably more than half are Puerto Ricans whose native
language is Spanish . Some 15 or 20 of them are unable to
communicate in English.) Kreshtool inspected the cards. He
did not compare the names they bore with a list of Respond-
ent's employees because he had no such list in his possession
at that time. He concluded that Local 770 did, in fact, repre-
sent a majority of Respondent's employees. Later that day,
Derrickson visited Kreshtool at his office and picked up the
cards. Kreshtool granted recognition to Local 770. Derrick-
son subsequently destroyed the cards.
That day and the next, Kreshtool and Derrickson nego-
tiated, either by telephone or in Kreshtool's office. They used
as a format for their discussions a contract which they had
previously negotiated for another of Kreshtool's clients. On
the evening of Thursday, August 13, they met in Kreshtool's
office. At this session, Chaiken was also present for Respond-
ent; Bennett, another representative of the International
Brotherhood of Pulp, Sulphite and Paper Mill Workers, for
Local 770. None of Respondent's employees was present.
Agreement was reached on a 30-month contract. It provided
for an immediate 15-cent-an-hour pay raise and two 10-cent
raises, one at the beginning of the second year and the other
at its end, an additional paid holiday on Good Friday, and
' This unit description is taken from a paragraph of the consolidated
complaint which is admitted in the answer. I find that it is an appropriate
unit for purposes of collective bargaining.
2 weeks' vacation after 5 years' service. It included various
other changes in the terms and conditions of employment at
Respondent's plant. Among these was a union shop clause
which read:
All employees coming under this Agreement shall
become and remain members of the Union in good
standing as a condition of employment seventy-five (75)
working days after the beginning of their employment or
30 days after the signing of this Agreement which ever
is later.
Derrickson's agreement to the contract worked out was
subject to ratification by employees in the unit. On Friday,
August 14, Local 770 leafleted Respondent' s plant , announc-
ing a meeting on Saturday, August 15, for that purpose. The
meeting was held as advertised. Approximately 20 employees
showed up. A vote was taken. The result was in favor of
ratification. In the meantime, Kreshtool prepared a docu-
ment setting forth the agreement reached on the evening of
August 13 and ratified on the morning of August 15. Repre-
sentatives of Respondent and Local 770 signed it on the
afternoon of August 15.
UE telephoned Chaiken on Monday, August 17, and was
referred to Kreshtool. Kreshtool received a call from Hel-
fand, an official of UE, that day. These were the first contacts
by UE of any official or representative of Respondent. Hel-
fand said UE wanted to meet with Kreshtool. Kreshtool did
not reveal that Respondent had already recognized and en-
tered into a collective-bargaining agreement with another
union. He made an appointment to meet James Hart, a field
organizer for UE, in his office, the next morning. On the
morning of Tuesday, August 18, Kreshtool received a tele-
phone call from Helfand and Hart. They accused him of
violating the law. They told him Hart was not going to keep
the appointment. They announced that UE was filing a peti-
tion for an election instead. That day, UE filed Case 4-RC-
8803, a petition for an election among Respondent's em-
ployees.
During the lunch break August 18, starting at noon, Der-
rickson and his associates met with all the employees in Re-
spondent's cafeteria and explained the contract to them. This
meeting was held with Respondent's permission. A notice of
the meeting was placed on the plant bulletin board on August
17. One of Derrickson's associates who speaks Spanish was
present.
2. Analysis and conclusions
The General Counsel tried this case on a Bernhard-
Altmann` theory, i.e., Respondent violated Section 8(a)(2)
and (1) of the Act by recognizing Local 770 at a time when
Local 770 did not represent a majority of its employees. To
that end, he called as witnesses 23 of the 73 employees in the
unit on August 11 to testify that they had not signed an
authorization card for Local 770. In addition, the rejected
exhibit file contains affidavits to the same effect from 14 more
persons in the unit on August 11 who were subpenaed by the
General Counsel but failed to appear to testify. Dead affida-
vits are an incompetent substitute for live witnesses. Twenty-
three are considerably less than half of 73. Therefore, the
" Bernhard Altmann Texas Corporation, 122 NLRB 1289, affd. 366 U.S
731 The General Counsel specifically disclaimed any reliance on a Midwest
Piping & Supply Co., Inc., 63 NLRB 1060, theory. In any event, the only
evidence which might be relevant to such a theory is Kreshtool's frank
admission he was aware , prior to August 10, that Respondent 's plant was
being leafleted with UE leaflets dated July 28 and August 6, 11, and 13. This
falls far short of establishing that Kreshtool, when he recognized Local 770
on August 11, knew more than one union was seeking to organize Respond-
ent's employees.
BENJAMIN F. RICH CO.
General Counsel has failed to prove, by this direct technique,
that Local 770 did not represent a majority of employees in
the unit when Respondent recognized it on August 11.
The General Counsel also contends that the record as a
whole justifies an inference that Local 770 did not represent
a majority on August 11. He relies, mainly, on Local 770's
failure to produce its authorization cards or a list of the
employees who signed cards for it prior to August 11 in
response to his demand for them. He also relies on Derrick-
son's inability to pick out, from the list of names which the
parties stipulated comprised the 73 employees in the unit on
August 11, the name of even one who had signed a card for
Local 770 and on Kreshtool's admission that he had no such
list to compare Local 770's alleged cards with when he con-
cluded Local 770 did have a majority. He argues that, even
if Derrickson did show 43 cards to Kreshtool, they might
have included some signed by nonunit employees.
To draw the inference urged by the General Counsel, I
would have to discredit Derrickson's testimony that he pre-
sented 43 cards signed by unit employees to Kreshtool on
August 11 and thereafter destroyed them because they had
served their purpose. I would also have to discredit Kresh-
tool's testimony that he looked through a stack of approxi-
mately 55 to 65 cards none of which, on its face, gave him
any cause to doubt its authenticity, as well as his testimony
about his prior relationship with Derrickson in labor rela-
tions matters which caused him to conclude that the interest
of his client would be best served by immediate recognition.
As is already indicated in the section entitled "Facts" above,
I credit both Derrickson and Kreshtool, having no reason
from either their demeanor on the witness stand or the record
made before me to discredit them. Therefore, the General
Counsel has failed to prove, by this indirect technique, that
Local 770 did not represent a majority of unit employees on
August 11. American Beef Packers, Inc., 187 NLRB No. 135.
I conclude that Respondent did not violate Section 8(a)(2)
and (1) of the Act when it recognized Local 770 as the collec-
tive-bargaining representative of a unit of its hourly rated
employees on August 11. Since Respondent's recognition of
Local 770 was legal, it follows that it was free to enter into
a contract with Local 770 which contained a valid union-
security clause. Consequently, I conclude that Respondent
did not violate Section 8(a)(3) and (1) of the Act when it did
just that on August 15.
B. Case 4-CA-5384
1. Facts
Lydia Cruz began working for Respondent in August
1969. She was a capable employee whose work was satisfac-
tory. Her foreman, Robert Martin, praised her on occasion
for her quiet manner and the amount of her production. She
was one of three leaders among the employees in UE's organ-
izing campaign. The other two were Olga Sanchez and Jose
(William) Silva.
On October 12 Angel Beltran, a rank-and-file employee,
told Mrs. Cruz that other rank-and-file employees had told
him she was going to be fired.
Gary Feinberg investigated Case 4-CA-5343 for the Gen-
eral Counsel . He interviewed many of Respondent's em-
ployees at the post office building in Wilmington on the
evenings of October 15 and 16 to determine whether they had
signed authorization cards for Local 770. During the day on
October 15, Mrs. Cruz spoke to several employees to remind
them to see Feinberg that evening.
Elizabeth Pacheco, a rank-and-file employee, saw Naomi
Bosch, a rank-and-file employee, speak to Martin on the
afternoon of October 15. The only part of the conversation
she overheard was Miss Bosch's mention of the names "Lydia
459
and William." Around 2 that afternoon, Mrs. Pacheco spoke
to Mrs. Cruz in the ladies' room. She told Mrs. Cruz to be
careful of Miss Bosch because Miss Bosch had gone to the
office and told the bosses about the meeting scheduled that
night.
The next morning, a few minutes before the work bell was
scheduled to ring, Mrs. Cruz got into an animated conversa-
tion, in Spanish, with Miss Bosch. Mrs. Cruz told Miss Bosch
that Miss Bosch did not have to go into Mrs. Cruz' business,
that she did not have to go to the office to tell the bosses about
Mrs. Cruz' business that was none of Miss Bosch's business,
that Mrs. Cruz could do anything she wanted to do outside
of her worktime. The argument ended when Miss Bosch
broke into tears, threw her hands up to her face, and ran
sobbing from the building just as the work bell rang. Mrs.
Cruz went to work.
Donald Janvier, Respondent's assistant plant supervisor,
observed the incident, although he did not know why Mrs.
Cruz and Miss Bosch were arguing. Janvier speaks no Span-
ish. He followed Miss Bosch from the building. After search-
ing for a few minutes, he found Miss Bosch lying in one of
the parked automobiles on Respondent's parking lot. She was
still crying. Janvier asked her what was the matter. She re-
plied that she had not made any trouble for Mrs. Cruz and
Mrs. Cruz was trying to make trouble for her. Janvier begged
Miss Bosch to come back because he needed her on the
production line. After approximately 10 minutes, he gave up
and returned to the plant. As he came into the building, he
told Martin that he was going to fire Mrs. Cruz. He went to
where Mrs. Cruz was working. He told her to punch her
timecard out because she was fired. Mrs. Cruz protested that
he could not fire her and that she would not leave. Janvier
said, "Well, if you don't go, I'll call the police and have them
take you off the property."
Mrs. Cruz replied, "I go but I'll be back." She then left
without further incident. Miss Bosch returned to the plant a
few minutes later and went to work. She continued to work
for Respondent without incident until November, when she
quit.
2. Analysis and conclusions
Respondent contends that Janvier discharged Mrs. Cruz
because Miss Bosch 's services as a glazier were essential on
the production line and Mrs. Cruz, by causing Miss Bosch to
run from the building, was responsible for closing down the
line. The General Counsel contends that Respondent's osten-
sible motive is a pretext masking its real motive, Mrs. Cruz'
union activities, especially her activity in arranging for em-
ployees to see Feinberg in his investigation of a pending unfair
labor practice charge against Respondent. I do not reach the
ultimate issue of Respondent's motive because the General
Counsel has failed to prove one of the prerequisites to a
finding that Respondent violated the Act by discharging Mrs.
Cruz. There is no evidence in the record which will sustain
a finding that Respondent had knowledge of Mrs. Cruz'
union activities, either generally or in connection with Fein-
berg's investigation of Case 4-CA-5343.
In addition to the testimony on which some of the findings
set forth in the section entitled "Facts" above is based, Eliza-
beth Pacheco testified that, about 10 minutes after she saw
Naomi Bosch talking to Martin, the foreman, Judy West,
another rank-and-file employee, told Mrs. Pacheco that Mar-
tin had just asked her about the meeting scheduled for that
evening. Mrs. Pacheco also testified that when she spoke to
Mrs. Cruz in the ladies room, she told Mrs. Cruz what Judy
West had said to her. Neither Judy West nor, Robert Martin
was called as a witness. Respondent objected to .Mrs.- Pa-
checo's testimony about Judy West on the ground of heresay
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and moved that it be stricken. The General Counsel took the
position that it was competent evidence on which to base a
finding of company knowledge. I ruled that it was inadmissi-
ble as heresay when offered for that purpose and granted
Respondent's motion to strike. Therefore, the only facts on
which a finding of company knowledge could be based are
those set forth above. I find them insufficient for that purpose.
Consequently, I conclude that the General Counsel has failed
to prove, by a preponderance of the evidence, that Respond-
ent violated Section 8(a)(3) and (1) of the Act by discharging
Lydia Cruz on October 16.
Upon the foregoing findings of fact, and on the entire
record in these cases, I make the following:
CONCLUSIONS OF LAW
1. Benjamin F. Rich Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. United Electrical, Radio and Machine Workers of
America and International Brotherhood of Pulp, Sulphite
and Paper Mill Workers, Plastic and Machine Local 770, are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The allegations of the consolidated complaint that Re-
spondent violated Section 8(a)(3), (2), and (1) of the Act by
recognizing Local 770 on or about August 11, 1970, when
Local 770 did not represent a majority of Respondent's
hourly rated employees and by thereafter entering into a
collective-bargaining agreement requiring membership in Lo-
cal 770 as a condition of employment and by discharging
Lydia Cruz on or about October 16, 1970, have not been
sustained.
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:
ORDER
The consolidated complaint is dismissed in its entirety.