Thom Brown Shoes, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1981

257 N.L.R.B. 264 (N.L.R.B. 1981)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thom Brown Shoes, Inc. and Shoe Division, Amal-
gamated Clothing and Textile Workers Union,
AFL-CIO, CLC. Case 29-CA-7839
July 27, 1981
DECISION AND ORDER
On February 18, 1981, Administrative Law
Judge Joel P. Biblowitz issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel fi1ed exceptions and a supporting brief,
and the Respondent fi1ed cross-exceptions and a
reply brief to the General Counsel's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section lO(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 it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JoEL P. BIBLOWJTZ, Administrative Law Judge: This
case was heard before me in Brooklyn, New York, on
September 22 and 23, 1979. The complaint was issued on
April 29, 1980, based on a charge filed on March 6, 1980,
by Shoe Division, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC, herein called the
Union. The complaint alleges that Thorn Brown Shoes,
Inc., herein called Respondent, violated Section 8(a)(l)
and (3) of the National Labor Relations Act, herein
called the Act, by subjecting employee William Feinberg
to closer supervision than he had previously been subject
to, and by assigning him more arduous and less agreeable
job tasks than he previously had. In addition, the com-
plaint alleges that Respondent discharged and failed and
refused to reinstate Feinberg to employment due to his
support for, and other activities on behalf of, the Union.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after consideration of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
J. JURISDICTION
Respondent, a New York corporation with its princi-
pal office and place of business located at 80 Mal Drive,
Lindenhurst, New York, is engaged in the manufacture,
sale, and distribution of shoes and related products.
During the past year Respondent purchased, and caused
to be delivered to its place of business, wood, leather,
257 NLRB No. 27
and other goods and materials valued in excess of
$50,000, of which goods and materials valued in excess
of $50,000 were received from enterprises located within
the State of New York, each of said enterprises having
received said goods and materials in interstate commerce
directly from points outside of New York State. Re-
spondent admits that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and I so find.
II. THE LABOR ORGANlZATION INVOLVED
Frank Saffiotti, manager-treasurer of the Union, testi-
fied that the purpose of the Union is to organize employ-
ees and thereafter to enter into collective-bargaining
agreements with employers in order to improve the
working conditions of the employers' employees. Em-
ployees take part in negotiations with representatives of
the Union and management and, in fact, in one of the
collective-bargaining agreements presently in effect be-
tween the Union and an employer, two employees who
were members of the Union's negotiating committee
signed the agreement along with Saffiotti and the Em-
ployer. I therefore find that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
There are a number of unfair labor practices alleged
herein, all involving actions directed at employee Wil-
liam Feinberg. Most important is the allegation that he
was unlawfully discharged by Respondent on January
24, 1980, due to his activities on behalf of the Union. Ad-
ditionally, there are the following allegations of discrimi-
natory conduct directed at Feinberg: Respondent criti-
cized his work more often than it had in the past; Re-
spondent turned Feinberg's machine to prevent him from
speaking with other employees; it established a rule pro-
hibiting employees from eating lunch at their work sta·
tion; it changed the production system to smaller units;
and it prohibited Feinberg from doing recutting work for
other employees. It is alleged that all these actions were
caused by the fact that Feinberg acted as the Union's ob-
server at the Board election conducted on August 3,
1979.
A. Background
The Union filed a petition on May 31, 1979; 1 begin-
ning about the middle of June, Thorn Brown, president
of Respondent, made speeches to assembled employees,
informing them of the "pros and cons" of the Union.
During one of these meetings Leonard Dunst, the comp-
troller of Respondent, handed out papers to all the em-
ployees stating: "I do not give Thorn Brown Shoes, Inc.,
permission to issue my address to the union" with space
for a signature. Feinberg, as well as the other employees,
signed it. On June 29, a Decision and Direction of Elec-
tion issued, and, pursuant to that decision, an election
was scheduled among certain of Respondent's employees
(including Feinberg) for August 3. Sometime in the
1 Unless otherwise stated, dates mentioned herein are for the year
1979.
THOM BRDWN SHOES, INC; 263
month of July a meeting was held on Respondent's
premises with all the employees, Brown, an() Respond·
eni~1rforeman, Anthony Del Maestro. At this meeting
Brow~ again informed the employees" of the pros and
coifs"ol' the Union, and told the employees thilt pobody
would' know how they voted once they went iilto the
voting bootli. He also stated: "We can't find out who the
obServer is; whoever it is, he or she is [a] gutles~ crea·
ture." Shortly thereafter, one of the Union'srepresenta-
tives informed Feinberg that their planned observer at
die. election was unwilling to act as its observer and he
asked Feinberg to be the observer; Feinberg rductantly
agreed. About 2 days before the e1ection Feinberg in-
formed Brown that he would be the Union's observer
and Brown· remarked, "something to the fact that he
don't care .... " The Union lost the election 2 and filed
timely objections. The objections were sustained on the
ground that· Respondent had failed to provide the Union
with a proper Excelsior Hst prior to the election. Excelsi·
or Underwear Inc., 156 NLRB 1236 (1966). On December
13, the Regional attorney for Region 29 of the Board
made application to the United States District Court for
the Eastern District of New York for an order requiring
obedience to its subpoena duces tecum; on. Feburary 20,
1980, United States DistriCt Judge Edward R. Neaher
issued a memorandum order directing Respondent to
comply with the Board's subpena. Thereafter Respond-
ent supplied the Regional Office with a proper Excelsior
list of eligible voters for the payroll 'period ending Feb-
ruary 23, 1980. A second election was conducted among
Respondent's employees on September 1 I, 1980; the
Union also lost that election.
B. Criticism of Feinberg's Work
Feinberg testified that around .2 weeks after the elec-
tion his relationship with Del Maestro changed. Accord-
ing to Feinberg: "He said this is not right, this is not
wrong . . . you have got to speed it up, you are not
doing good. He picked up on my quality of work, which
he never did before." According to Feinberg's testimony,
he was subject to this criticism about 10 times more
often than the other cutters employed by Respondent.
C. Turning Feinberg's Machine
Feinberg began his employment with Respondent in
February 1979; he was a ctltter,. which involved cutting
the outside part ofthe leather or suede of the shoe. The
machine he operated is .. called a "clicker" and it is the
first step in the process. of manufacturing the shoe. In ad-
dition to Feinb~rg there was qne qther fulHime cutter
and another full: time employ~e vVho did cutting duri~g
part of his workday. Pdor to October the machine Fein·
berg workegon was situated so thatwhile he worked he
faced the other employees in the plant. In October Fein-
berg was out of work 1 day; when he returned he saw
that his machine had been rotate~ 1 ~0 degree5Jo face
2 After the electio.ll Brown. told ~an the employees: "Bill· Feinllerg
served a function here and, I don't want anybody to hold it against 'him,
somebody had t as
Feinberg was cutting. On cross-examination Feinberg
was asked whether other employees' machines were also
turned around or moved:
JUDGE BIBLOWITZ: The next day did you notice
a lot of changes in the place?
WITNESS: Yes.
JUDGE BIBLOWITZ: A lot of machines were
moved or turned around, as yours?
WITNESS: I don't know about turned around, but
they were moved;
JUDGE BIBLOWITZ: A lot ofmachines?
WITNESS: Right.
Feinberg testified that the other clicker machines were
moved before his machine was turned around and that
the machine of an employee who was. positioned aoout
10 feet from him was moved to the other side. oft he con.
veyor so that she no Jong~r faced toward the,wall while
operating her machine·. · · , .. ·
Thomas O'Shea, who is employed by Respondent as a
mechanic, testified that, inthe fa11 of 1979, Respoljd~pt
installed a new production system. They removed every-
thing from the middle of the floor and all the·· machines
were lined up along a conveyor belt, ~hich was in 'the
shape of a horseshoe; all the machines in· the factory
were turned around ·Of moved to different locations. 'In
addition, at this time Respondent purchased and leased
new machinery to further modernize and accelerate· prO-
duction. O'Shea further testified, uncontradicted, tha:t
prior to October Feinberg complained tb him on· numer-
ous occasions that he did not have enough light at· his
work station; by turning his machine around he had
more light to work by. Additionally, according· to
O'Shea's testimony, prior to October;.the dies that Fein•
berg and the others used were scattered on tables near
their machines; in October when they turned Feinberg's
machine they placeJeaher discussed, supro. although Rodriguez did vote at the elec-
tion conducted on Se tember II, 1980.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Feinberg also testified that both before and after the
August 3 election Brown told him "dozens of times" not
to smoke on the premises and that he received instruc-
tions "many times" that if he smoked he would be dis-
charged because it was a danger and a hazard, although
Feinberg testified that he never saw any "No Smoking"
signs in the factory.
Credibility Determinations
Wherever there is a conflict, I would credit the testi-
mony of Feinberg. What I appreciated most about his
testimony was his willingness to admit to facts detrimen-
tal to his case-his openness both on direct and cross-ex-
amination. In contrast to Feinberg was Brown, who dis-
played a pompous, arrogant attitude, both on and off the
witness stand. In addition, he displayed a disdain for the
proceedings. 9 I also found his testimony unreliable, too
"pat." For example, his testimony regarding Rodriguez,
who was hired to replace Feinberg, Rodriguez' applica-
tion for employment is dated February I, 1980. Feinberg
testified that he asked Brown for his job back on the
Monday after his termination, January 28, 1980. Brown
first testified that he did not receive this call from Fein-
berg until "a week and a day" after Feinberg's termina-
tion (February I, 1980), and then changed his testimony
to "a week and a half' after Feinberg's termination; it
appeared to me that Brown was fabricating his testimony
in order to bolster his case on a close issue-that Rodri-
guez applied to work for Respondent before Feinberg
called Brown.
Analysis
The sole basis for the alleged discrimination herein is
the fact that Feinberg acted as observer for the Union at
the election conducted on August 3. The sole statement
indicating animus was Brown's statement (before Fein-
berg agreed to be the observer) that the Union's observer
was a "gutless creature." Balancing this, however, was
Brown's statement to Feinberg that he did not care when
Feinberg told him that he would be the Union's observ-
er, and Brown's statement to all the employees after the
election that somebody had to be the Union's observer
and that they should be friends with Feinberg. With a
weak background of animus such as this, the General
Counsel needs strong evidence of the discrimination
practiced; unfortunately for the General Counsel this is
not present herein.
In or about October (about 2 months after the elec-
tion) Feinberg's machine was turned 180 degrees to face
the wall rather than the production area it used to face.
However, the evidence establishes that this was the
period when Respondent installed its conveyor in the
plant and all the plant's machines were moved or turned.
Even Feinberg testified that, at that time, "a lot of the
other machines were moved." This allegation implies
that Respondent attempted to isolate Feinberg, and yet
• On a number of occasions during the hearing (during the General
Counsel's opening statement, and during Feinberg's direct examination
and the direct examination of Dunst), I had to admonish Brown for
laughing and engaging in other distractions during the hearing and the
taking of testimony.
the General Counsel's next allegation of discrimination
(not allowing him to eat lunch at his machine) seems to
imply just the opposite-that Respondent was forcing
him to eat with the other employees. I find it difficult to
reconcile these allegations. In addition, Respondent's rea-
sons for requiring Feinberg to eat in the lunchroom seem
reasonable-the possibility of falling food damaging the
leather or causing rodents is a real one when an employ-
ee eats at his work station; additionally a hotplate such as
Feinberg used could be a fire hazard when used in a
work area with leather or other fabric nearby. For these
reasons, I would dismiss the allegations that Respondent
violated Section 8(a)(l) and (3) of the Act by turning
Feinberg's machine and not allowing him to eat lunch at
his machine.
I would likewise dismiss the allegation that Respond-
ent violated Section 8(a)(l) and (3) by changing its pro-
duction system to smaller orders. This new system ap-
plied to all employees and it seems to be a reasonable
rule to insure equality among all the cutters-you cannot
select the best work order, you must choose the order on
top. Additionally, Feinberg was not harmed by this
change as the employees were paid a straight hourly
salary rather than being paid piece rate. I would there·
fore dismiss this allegation.
When Del Maestro approached Feinberg on January
24, 1980, Feinberg was violating two of Respondent's
rules; he was in the leather room and he was preparing
to do recutting work for a fellow employee (the first
time Del Maestro told him not to do recutting work-
though not emphatically-was in March, prior to the
election). On the basis of Feinberg's testimony, which I
have credited, I find that a heated argument developed
between Feinberg and Del Maestro (not surprisingly, as
Feinberg was prepared to "blow up" if Del Maestro ap-
peared); at one point Del Maestro told Feinberg, "[I]f
you don't like it, quit" to which Feinberg said, "I am not
quitting, you want to fire me, fire me, I am not quitting"
and Del Maestro told him, "[Y]ou are fired."
In Wright Line, a Division of Wrlght Line, Inc., 251
NLRB 1083 (1980), the Board set forth the rule it will
henceforth apply in dual motive or pretextual cases such
as the instant matter: "First, we shall require that the
General Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a 'mo-
tivating factor' in the employer's decision. Once this is
established, the burden will shift to the employer to dem-
onstrate that the same conduct would have taken place
even in the absence of the protected conduct." I would
find that the General Counsel has not made the prima
facie showing required under Wright Line, supra. The one
instance of protected conduct by Feinberg occurred
almost 6 months prior to the discharge and there was
never any statement of animus directed toward Feinberg
in regard to his acting as the observer; in fact, the two
statements Brown made in that regard was the statement
to Feinberg that he did not care and his statement to all
the employees to "forgive and forget." Additionally,
Feinberg knew on January 24, 1980, that he was violat-
ing Respondent's rules when he was in the leather room
to do some recutting for a fellow employee and he invit-
THOM BROWN SHOES, INC. 269
l'd Del Maestro to discharge him. Although I might per-
ceive discharge as too harsh a punishment for these in-
fractions, the evidence does not support a finding that
Feinberg was discharged because he acted as the observ-
er for the Union at the August 3 election. I would there-
fore dismiss this 8(a)(l) and (3) allegation.
CoNCLUSioNs oF LAw
l. The Respondent, Thorn Brown Shoes, Inc., is an
employer within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Shoe Division, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in any conduct in vio-
lation of the Act as alleged herein.
Based upon the entire record in this proceeding, I
therefore shall make the following recommended:
ORDER 10
It hereby is ordered that the complaint be, and it
hereby is, dismissed in its entirety.
10 In the event no exceptions are tiled as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, 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.