Laundry Workers Local 52 (Dickies Industrial)

National Labor Relations Board - Board Decisions

Feb 28, 1984

268 N.L.R.B. 1223 (N.L.R.B. 1984)

LAUNDRY WORKERS LOCAL 52 (DICKIES INDUSTRIAL)
AFL-CIO Laundry & Dry Cleaning International
Union, Local No. 52 and Standard Industrial
Towel and Uniform Supply, Division of Dickies
Industrial Services, Inc.
Standard Industrial Towel and Uniform Supply, Di-
vision of Dickies Industrial Services, Inc. and
AFL-CIO Laundry & Dry Cleaning Interna-
tional Union, Local No. 52, Petitioner. Cases
21-CB-8324 and 21-RC-17107
28 February 1984
DECISION, ORDER, AND
CERTIFICATION OF
REPRESENTATIVE
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 25 July 1983 Administrative Law Judge
David G. Heilbrun issued the attached decision.
The Charging Party-Employer filed exceptions and
a supporting 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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
I The Charging Party-Employer has excepted to some of the judge's
credibility findings. The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear prepon-
derance 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 no basis for
reversing the findings. We find no merit in the contention of the Charg-
ing Party-Employer that, because the judge generally credited the Re-
spondent-Petitioner's witness and discredited the General Counsel's wit-
nesses, his credibility resolutions are erroneous or attended by bias or
prejudice. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656 (1949).
The General Counsel asserted that, in the course of an organizing cam-
paign, Jose Robles, the Respondent-Petitioner's business agent, told em-
ployees Margaret Huguez and Theresa Carrillo that the Union would
refuse to assist those who failed to sign authorization cards or vote af-
firmatively in the forthcoming election, should the Union win. By such
utterances, the General Counsel contended that the Union both violated
Sec. 8(bXIXA) of the Act and engaged in objectionable conduct requir-
ing that the election be set aside.
The Respondent-Petitioner denied that such utterances were made.
Concededly, this case turns on the credibility of witnesses.
Based on the favorable impression created by the demeanor of the Re-
spondent-Petitioner's witness, Robles, and on what was deemed to be his
superior recollection, the judge credited his testimony over that given by
the General Counsel's witnesses, whose versions of the facts were some-
times inherently inconsistent and in conflict with prior affidavits, with
each other's, and with that given by Robles. Indeed, our examination of
the record also reveals one instance in which Filimon Razo, a witness for
the General Counsel, tended to corroborate Robles, who credibly testi-
fied that he had merely stated, in response to Carrillo's expressed fear of
being fired for supporting the Union: "Well, I'm here, you know, just to
do the opposite, I'm here to protect you. But I won't be able to protect
you if the Union won't get in [emphasis supplied]." In these circumstances,
we find no evidence of bias and prejudice because the judge credited
Robles over the General Counsel's three witnesses.
The Charging Party-Employer also contends that the judge revealed
bias and prejudice against the General Counsel's witnesses by speculating
that their discredited version of events may have been prompted by the
268 NLRB No. 184
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
The Regional Director's report is affirmed, and
Objection No. 2 is overruled.
CERTIFICATION OF
REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid bal-
lots have been cast for AFL-CIO Laundry & Dry
Cleaning International Union, Local No. 52, and
that it is the exclusive collective-bargaining repre-
sentative of the employees in the unit found appro-
priate.
Charging Party-Employer's "opportunistic" use of language in its post-
election objections which closely track the complaint allegations. We dis-
avow this speculation. It is immaterial to the issues raised by the com-
plaint. The judge himself apparently recognized this, for none of his find-
ings or conclusions is predicated upon it. Accordingly, we are satisfied
that the Charging Party-Employer's allegations of bias and prejudice are
without merit.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
consolidated case was heard at Los Angeles, California,
on May 24, 1983, based on a complaint alleging that
AFL-CIO Laundry & Dry Cleaning International
Union, Local No. 52, called the Respondent, violated
Section 8(b(lX)(A) of the Act by a representative's stating
he would not render assistance to an employee who
failed to support his organizational campaign and, after
inquiring how an employee would vote in a Board-con-
ducted election, telling the employee that the secret-
ballot choice made by the employee would determine
the Respondent's future treatment of her. The issue con-
solidated with the complaint in this proceeding is based
on a Regional Director's Report on Objections in which
a certain Objection 2, as timely filed and served follow-
ing a Board-conducted election by Standard Industrial
Towel and Uniform Supply, Division of Dickies Indus-
trial Services, Inc., called the Employer, was a matter
that could best be determined after a hearing.
On the entire record, my observation of the witnesses,
and consideration of oral summations and the Employer's
posthearing brief, I make the following
FINDINGS OF FACT AND RESULTANT CONCLUSIONS
OF LAW
I. SETTING
In approximately early October 1982 Jose Robles, a
business agent and organizer for the Respondent, com-
menced union activity among the nearly two dozen em-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees of the Employer.' Over the month period that
followed his primary technique was to visit the employ-
ees at their homes, explain the benefits of unionization,
and solicit authorization cards. He followed this ap-
proach with about 17 employees out of the total work
force, believing from informational sources available to
him that it would be futile to contact the several addi-
tional ones because of their known view on the subject.
His efforts resulted in obtaining approximately a dozen
signed authorization cards, and on this basis he filed a
representation petition on November 8, 1982, which was
docketed as Case 21-RC-17107. 2 On November 24 the
Regional Director approved a Stipulation for Certifica-
tion Upon Consent Election as entered into between the
parties, and on this basis a secret-ballot election was con-
ducted on December 16. As among approximately 22 eli-
gible voters the results were clearly 12 votes for the
Union as the Petitioner and 10 votes against. On Decem-
ber 21 the Employer validly filed five objections, two of
which were later withdrawn and two others of which
were recommended by the Regional Director to be over-
ruled because no evidence had been offered in support
thereof. The remaining Objection 2, as here consolidated
for hearing, states:
The Union and those acting in its behalf rendered
impossible a free choice in the election by threaten-
ing employees who opposed the Union or who re-
fused to support the Union or who refused to di-
vulge to the Union how they intended to vote in
the election, that they would be denied their right
to fair representation by the Union in the event the
Union prevailed in the election.
II. THE GENERAL COUNSEL'S EVIDENCE
Margaret Huguez has been with the Employer over 4
years and presently works in shipping. She testified that
in early November Robles had come to her home soon
after she arrived following the 2:30 p.m. quitting time.
He introduced himself, displayed pamphlets, and stated
he was trying to get signatures for the Union. Robles
also tendered an authorization card, with Huguez stating
she wanted to discuss the matter with her husband
before doing anything. She recalled only once again ever
speaking with Robles and fixed this as around a week
before the representation election took place. This was a
telephone conversation in which Robles referred back to
his original visit and asked how she was planning to
vote. Huguez answered that it was not any of his busi-
ness because of the secret character of balloting, and she
testified that in response to this he said he just wanted to
learn the answer so he would know how to treat her
I The Employer engages in the business of providing work clothes
rental services in connection with which it operates a facility located in
El Monte, California, annually deriving gross revenues in excess of
$500,000 there while annually purchasing and receiving goods and prod-
ucts valued in excess of $50,000 directly from suppliers located outside
California. On these admitted facts I find the Employer is engaged in
commerce and a business affecting commerce within the meaning of Sec.
2(6) and (7) of the Act, and otherwise that the Union is a labor organiza-
tion within the meaning of Sec. 2(5).
2All dates and named months hereafter are in 1982 unless shown oth-
erwise.
when the Union came in the plant. Huguez rejoined that
this sounded like a threat, following which Robles an-
swered that it really did not matter as he had enough sig-
natures for the Union at that point. Further remarks
were hindered by telephone static causing Robles to sug-
gest that he would call Huguez back to get a better line.
The two then hung up, but Huguez disconnected her
equipment thus preventing Robles from getting through
again.
Theresa Carrillo has worked for 2 years with the Em-
ployer, and testified to having three conversations with
Robles during late 1982. In the first of these Robles came
to her house, introduced himself as he had with Huguez,
and tendered a card that he asked her to sign as a step
toward better benefits. Carrillo recalled that her hus-
band, Filimon Razo, joined this conversation and spoke
disfavorably about the Union. In further discussion of the
subject, Robles said that Carrillo was not obligated to
sign. However, she testified that he followed this by
saying that if the Union got into the Company he was
not going to help her if she were not with them. A
second conversation about 2 weeks later only involved
Robles' return to the home inquiring about her intentions
as to signing the card. His remark on leaving that time
was that she should think the point over well. Carrillo
recalled the third conversation as taking place in late
November at her home with Razo also present. On this
occasion Robles explained that he returned after hearing
from another employee that Carrillo was ready to sign
the card. She denied having told anyone that, and Robles
responded saying that her signature was actually not nec-
essary because there were already enough. Carrillo testi-
fied that he followed this by saying that if she did not
want to sign then not to do so, but if the Union came
into the Company and the Company fired her he could
not help (or "protect") her at all because she was not
with them as he would very well know.
Razo recalled being present twice when his wife con-
versed with Robles. He testified that on the first occa-
sion at the house Robles had solicited her signature for
the Union, saying that, if it "wouldn't" come in and em-
ployees were later laid off, then "they couldn't do any-
thing for them." Razo placed the second conversation
about 2 weeks later and also at the house, at which time
Robles had come to learn Carrillo's decision about sign-
ing the Union's card. She was not willing to do so at the
time, and after inviting Carrillo to call him on the sub-
ject Robles said that if the Union "would come in" and
persons were then laid off "they couldn't help them," so
that if he did come in (at the Company) "it was going to
cost her more."3
III. THE RESPONDENT'S EVIDENCE
Robles testified that he had been with the Union since
May and this organizational campaign was the third in
which he was involved. He recalled the initial home visit
to Huguez as much as she had, including a separate con-
versation with her husband on the subject on unioniza-
tion. After unsuccessfully attempting to see her personal-
' Certain errors in the transcript are hereby noted and corrected.
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LAUNDRY WORKERS LOCAL 52 (DICKIES INDUSTRIAL)
ly again at home, he telephoned her at a time when he
believed she was home because she was on vacation. He
reached Huguez on a second attempt that morning,
talked initially about the card he had left, and then asked
how she was going to vote. This aggravated Huguez
into telling him that it was not his business and, as he
tried to calm her rising anger, the telephone connection
became so noisy that he suggested they hang up and he
would try calling in again on a better line. After making
this break in the contact, Robles could not get an answer
on his callbacks and consequently never spoke to her
again. Robles denied that during the actual telephone
conversation he had ever said anything about the result
of how she would vote or the Union's reaction to her in-
tentions.
Robles recalled three discussions with Carrillo during
the campaign, the first of which was introductory and
with only her mother as another adult present. He
denied asking Carrillo on this occasion how she might
vote or telling her how the Union would treat her if she
were not its supporter. He believed the second conversa-
tion took place at her home a few days later and was
only in a routine followup of the first visit. Robles re-
called the third conversation as being around late No-
vember, and that he had appeared again at the house be-
cause another employee told him Carrillo was now ready
to sign for the Union after noticing so many other people
were interested. He found that in fact she was still unde-
cided, and for the first time her husband Razo joined the
conversation and gave an example of his friend's having
had an unfortunate experience with a union. Robles testi-
fied that he explained Carrillo would not experience
problems, and that her signature would actually be fa-
vorably protective as evidence of having sought legal
improvement in job rights. Robles testified that Razo
continued to speak against signing and uttered that Car-
rillo would get the same benefits regardless of whether
the Union came in or stayed out. Robles recalled further
that he said he was really there to protect her in job
matters, but would not be able to do so if the Union did
not get in. He expressly denied telling Carrillo that he
would not be able to protect her should the Union get in
and she had not signed a card. Robles testified that the
conversation ended with Carrillo's saying rather uncon-
vincingly that she would call him later, but the two
never spoke again particularly because of her appearance
of just not actually being interested in joining the cause.
IV. CREDIBILITY
On critical factual issues of the case, I discredit the
General Counsel's witnesses and fully credit the testimo-
ny of Robles. I am dubious of Huguez because of de-
meanor characteristics and because she displayed an indi-
cation of bias toward Robles and the Union. More im-
portantly the highly persuasive testimony of Robles
makes her version of remarks inherently improbable, and
it is significant that she immediately told her supervisor
(Kenny) about what she took as a threat emanating from
Robles. She subsequently repeated her experience to a
higher official, and I am convinced that she completely
misunderstood permissible inquiry about her voting in-
tentions and has succumbed to suggestiveness surfacing
in the postelection process. I therefore reject her testimo-
ny that Robles had expressed or inferred that she would
receive treatment by the Union any different from any
other employee regardless of her preelection stance.
Carrillo is highly unconvincing in terms of demeanor,
and has been shown as inconsistent in details of her testi-
mony. There is discrepancy in essentially what time of
day the first conversation with Robles took place and
who was present during the third. She is at odds with
Razo concerning how Robles had commented on em-
ployees' voting privileges, and as with Huguez I believe
she seriously distorted what he explained about unioniza-
tion rights and confused his scenario about employees
being without union protection by thinking that he
meant the Union itself would not fairly serve them. Car-
rillo was admittedly distraught for personal reasons
during the critical time of events in this case, and she
also conceded having a poor memory of happenings. Fi-
nally, she, too, was suspect because of having told her
supervisor, Beatriz Mendez, of Robles' supposed remarks
only after the election was over. The testimony of Razo
was particularly unpersuasive, and his unaided memory
did little to support allegations of the complaint. I be-
lieve he is simply parroting notions that are erroneous in
the first instance.
The most vital aspect of overall credibility resolution
is that Robles manifested as a highly truthful, candid wit-
ness who possessed an excellent recollection of detailed
facts concerning his employee contacts. He persuasively
described working as a relatively new organizer under
an experienced superior, and to having a working knowl-
edge of labor law principles. His version of appropriately
soliciting authorization cards and verbally propagandiz-
ing about how the Union would be a force in protecting
employee job security is natural, normal, and here fully
convincing. For this reason I credit Robles over all testi-
mony on behalf of the General Counsel (and relatedly
the Employer) and accept his recollection as facts of the
case.
V. RESOLUTION OF ISSUES
As to the complaint in this consolidated proceeding
my credibility findings leave its key allegations unsup-
ported by any probative evidence. While Huguez took
telephone remarks to her as a threat, in truth Robles had
not, as alleged, stated there would be any failure of ordi-
nary assistance to her for not rallying to the Union's or-
ganizational campaign should it later become a certified
bargaining representative for a unit of which she was a
part. Similarly, Robles did not commit any comparable
threat, as was further alleged, in his series of contacts
with Carrillo. Here, too, an explanation of how the
Union might aid employees should they come to experi-
ence employment adversity has been twisted by the
hearer into a rendition that did not actually occur. It is
typical for an organizer of unrepresented employees to
emphasize the protection that a union might afford both
from the standpoint of its collective strength and as con-
versant with legal rights of employees and the procedur-
al means of attainment. Robles expressed just such no-
tions in his remarks to both Carrillo and Razo, and the
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's success in this situation must not be undercut
simply because several individuals failed to understand
what he was saying. While concededly Robles did at one
point directly inquire of Huguez as to how she would
vote, this tactical approach, without more, does not vio-
late the Act. Aside from its lack of inherent coercive-
ness, Robles reasonably explained that the question was
purely for the purpose of assessing how election pros-
pects were shaping up and whether Board processes con-
tinued to be appropriate to the Union's legitimate objec-
tives.
The Employer's Objection 2 depends on pertinent
findings in the CB case with which it is consolidated.
The accepted facts leave no support for its essential as-
sertions that threats of denial to future fair representation
could eventuate against unsupportive employees. Consid-
ering the extensive involvement of supervision in devel-
oping a basis for this objection, it is a close question as to
whether the Employer's postelection claim is little more
than an opportunistic effort to snatch a fairly won elec-
tion victory from this labor organization. In any event a
failure of appropriate proof is again the case, and the
issues raised by Objection 2 must be resolved in favor of
the Union.
Disposition
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended
ORDER 4
The complaint is dismissed in its entirety.
IT IS FURTHER ORDERED that the Regional Director's
Report on Objections be confirmed, additionally that Ob-
jection 2 be overruled, and that the Regional Director
shall now therefore certify the Union as exclusive collec-
tive-bargaining representative for the production and
maintenance unit agreedly found appropriate herein.
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the fmndings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and a11 objections to them shall be deemed waived for all pur-
poses.
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