UNITE HERE (Boyd Tunica, Inc. d/b/a Sam's Town Hotel and Gambling Hall Tunica)

National Labor Relations Board - Administrative Judge Opinions

Dec 29, 2010

26-CB-005146 (N.L.R.B. Dec. 29, 2010)

JD–(ATL)–31–10
Tunica, MS
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
UNITE HERE (BOYD TUNICA, INC.
d/b/a SAM’S TOWN HOTEL AND
GAMBLING HALL TUNICA)
and CASE 26–CB–5146
CYNTHIA STEPHENS, An Individual
Susan Greenberg, Esq.,
for the General Counsel.
Kristin L. Martin, Esq. (Davis,
Cowell & Bowe, LLP) ,
for the Respondent.
BENCH DECISION AND CERTIFICATION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge: I heard this case on November 8,
2010 in Memphis, Tennessee. After the parties rested, I heard oral argument, and on November
12, 2010, issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing this decision.1 The Conclusions of Law and Order
are set forth below.
General Counsel’s Offers of Proof
Testimony of Betty Ferguson
As part of the government’s case in chief, the General Counsel called the Charging Party,
Cynthia Stephens, who testified that Respondent’s agents had made certain statements described

1 The bench decision appears in uncorrected form at pages 309 through 319 of Volume 3 of the transcript.
The final version, after correction of oral and transcriptional errors, is attached as Appendix A to this
Certification.
JD(ATL)–31–10
2
in the Complaint. Immediately after Stephens’ testimony, the General Counsel called the
Employer’s labor relations manager, Betty Ferguson.
Ferguson testified that on May 20, 2010, Stephens came to her and reported that a union
agent had made comments which made Stephens feel threatened. The Respondent’s counsel 5
raised a timely hearsay objection to this testimony, which I sustained. However, I did receive
into evidence an email which Ferguson had sent to her superior, summarizing what Stephens had
said to her. I also allowed the General Counsel to make an offer of proof in question–and–
answer form. After careful consideration of the offer of proof and Stephens’ testimony, I have
decided to reverse my ruling sustaining the objection, and to admit the proffered testimony into 10
evidence.
Among other things, Section 10(b) of the Act provides that unfair labor practice
proceedings “shall, so far as practicable, be conducted in accordance with the rules of evidence
applicable in the district courts of the United States. . .” 29 U.S.C. Section 160(b).15
The statute does not spell out when following the Federal Rules of Evidence would not
be “practicable.” However, the Board has articulated a standard for the admission of hearsay
which does not depend on how the word “practicable” is defined. As stated in Dauman Pallet,
Inc., 314 NLRB 105, 106 (1994), the “Board has long held that it will admit hearsay evidence ‘if 20
rationally probative in force and if corroborated by something more than the slightest amount of
other evidence.’ RJR Communications, 248 NLRB 920, 921 (1980); Livermore Joe’s, Inc., 285
NLRB 169 fn. 3 (1987).”
However, in this instance I conclude that it is not necessary to apply the Board’s test 25
because Ferguson’s testimony is, in fact, admissible under the Federal Rules of Evidence. In
discussing this conclusion, I begin with the testimony Ferguson gave during the offer of proof:
Q. BY MS. GREENBERG: How did the conversation begin with Cynthia
Stephens the first time in your first conversation with her on May 20th?30
A. She came and told me that she felt very uneasy. That she felt that she had
been threatened and that she didn’t think that we as company were taking
care of her basically by allowing this to happen.
Q. And when she said she felt threatened, did she say why she felt
threatened?35
A. She then went into –– Gigi was the lady was who she named, had
basically made the remarks that I put in this e–mail about kicking their a–
s–s and that the Union would not represent those who didn’t sign up.
Q. And did you discuss the language that she said was used?
A. I told her that we have a very strict rule about language or threats being 40
made to our employees and that we would not tolerate any, whether it be a
vendor, a guest, or a fellow employee making threats of any kind to
another employee.
Q. Did she show you any gestures of any kind that Gigi or Pam had done?
A. I don’t recall.45
Q. Okay. And then after you talked to Ms. Stephens for about 20 minutes,
JD(ATL)–31–10
3
what happened at that point?
A. I sent her back to her area to go back to work or go on to lunch. I don’t
know which it was. And I told her that I would have to report up.
Presumably, the General Counsel offered this testimony to bolster Stephens’ credibility 5
by showing that she had made a prior consistent statement. However, a careful examination of
Stephens’ testimony indicates that what she told Ferguson was not entirely consistent with what
she said on the witness stand.
At the hearing, Stephens testified about the conversation she had with union agents Gigi 10
Phelps and Pamela Stitts in late April 2010. Stephens testified that she said to them, “I want to
find out if you all were funded to pay us if we go on strike.” According to Stephens, one of the
union agents answered, “Yes, we are.” Stephens further testified:
I said, “What if I have to go back in to work?” And then that’s when Pam said, 15
“We’ll kick your ass.” And then that’s when I said, “Okay.” And I got up and
walked off with Rose and told her I wasn’t paying nobody $30 a month to kick
my ass.
Although Stephens testified that Pam (Stitts) made the “kick your ass” statement, she told 20
Ferguson that Gigi Phelps made this statement. Thus, the words attributed to Stephens by
Ferguson constitute a prior inconsistent statement.
Rule 613(b) of the Federal Rules of Evidence states as follows:
25
Extrinsic evidence of prior inconsistent statement of witness. – Extrinsic evidence
of a prior inconsistent statement by a witness is not admissible unless the witness
is afforded an opportunity to explain or deny the same and the opposite party is
afforded an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to admissions of a party–30
opponent as defined in rule 801(d)(2).
Although Charging Party Stephens already had testified before Ferguson took the witness
stand, Stephens remained at the hearing throughout the day, and thus was present when I asked
the General Counsel whether there would be rebuttal testimony. Even though the General 35
Counsel did not present rebuttal evidence, Stephens, as the Charging Party, also had the right to
call and examine witnesses. Similarly, Respondent could have called Stephens to testify.
Therefore, Respondent was afforded the opportunity to interrogate her.
In these circumstances, I conclude that Ferguson’s testimony satisfied the requirements of 40
Rule 613(b) and was admissible on that basis. More fundamentally, in view of the fact that
Stephens had filed the unfair labor practice charge against Respondent and was a party to this
proceeding, her comments to Ferguson constituted the statement of a party opponent within the
meaning of Rule 801(d)(2) of the Federal Rules of Evidence, and therefore, these statements
were not hearsay. Accordingly, I reverse the ruling I made during the hearing and receive the 45
offer of proof into evidence.
JD(ATL)–31–10
4
Stephens’ inconsistent statement to Ferguson takes on further significance when
considered together with the government’s amendment of the Complaint. As discussed more
fully in the bench decision, the original Complaint had alleged that union agent Stitts had told an
employee (Stephens) not to call the National Labor Relations Board. The complaint amendment 5
deleted that allegation and substituted an allegation that Phelps had made such a statement. The
difference between Stephens’ testimony about the “kick your ass” statement and what she told
Ferguson shows confusion related to a separate complaint allegation. Although I relied on
demeanor observations in rejecting Stephens’ testimony, the muddle over who said what
reinforces my conclusion that it is unreliable.10
It also appears significant that Stephens waited more than 3 weeks before reporting the
“kick your ass” statement to the Employer’s human resources manager. Stephens’ comments to
Ferguson, that she “felt very uneasy,” that she felt she had been threatened and that she didn’t
think the company was taking care of her, should be considered in the context of that 3–week 15
delay. If Stephens really had felt threatened, would she have waited so long before bringing her
concerns to the attention of management?
The delay might be explained away if Stephens had displayed some shyness or hesitancy
about contacting the human resources department. However, the record shows that Stephens had 20
not been reluctant about approaching the human resources staff when she had a question about
the Union. Therefore, it is appropriate to consider the delay in assessing Stephens’ credibility.
In sum, based upon my demeanor observations and the other factors discussed above and
in the bench decision, I conclude that Stephens’ testimony is not reliable enough to have 25
significant probative value. Therefore, I reject it.
Testimony of Bonnie Ruth Moore
The General Counsel called Bonnie Ruth Moore, who is one of Charging Party Stephens’ 30
fellow employees. When Respondent objected to certain parts of Moore’s testimony, the
General Counsel made an offer of proof in question–and–answer form.
In this offer of proof, Moore recounted what Stephens had told her about Stephens’
contacts with Respondent’s agents. According to Moore, Stephens quoted the Respondent’s 35
agents as saying that if she, Stephens, crossed a picket line, she would “get her butt beat” or
something to that effect. However, Moore was not present when the union agent supposedly
made this statement, so Moore’s testimony clearly is hearsay and properly excluded under the
Federal Rules of Evidence.
40
To determine whether this testimony would be admissible in Board proceedings, I will
apply the Board’s two–part test: Is the testimony (1) rationally probative in force and (2)
corroborated by something more than the slightest amount of other evidence. See Dauman
Pallet, Inc., above.
45
JD(ATL)–31–10
5
To determine whether Moore’s excluded testimony is rationally probative in force, I will
begin by examining that testimony without regard to its hearsay nature. Moore did not know the
names of the union agents to whom Stephens had attributed the “butt beat” statement.
Additionally, she did not recall the exact words but only “something to that effect.” Therefore,
even apart from the hearsay nature of the testimony, it has little probative effect. It certainly 5
would be of quite limited usefulness in establishing a violation.
Moreover, the information which Moore recounted came from Charging Party Stephens.
Therefore, Moore is not an independent source of information about what happened. Further, for
the reasons discussed above and in the bench decision, I have concluded that Stephens is not a 10
reliable witness. Filtering what Stephens said through the ears and memory of a third party is not
likely to make it any more reliable. I conclude that the offer of proof does not pass the first part
of the Board’s test.
Moore’s testimony in the offer of proof also does not pass the second part of this test. 15
The information which Stephens provided to Moore is not corroborated by anyone except
Stephens, and I have rejected her testimony as unreliable.
For these reasons, I conclude that the offer of proof does not meet the Board’s criteria.
Therefore, I adhere to my ruling excluding that testimony from the record.20
Testimony of Pamela May Sidden
The government also called Pamela May Sidden, another employee of the Employer.
Sidden also testified that Stephens told her about statements which Stephens attributed to union 25
agents. Sidden was not present when the union agents supposedly made such comments.
Therefore, Sidden’s testimony clearly is hearsay and properly excluded under the Federal Rules
of Evidence. Respondent objected to the receipt of this testimony and I sustained the objection.
The General Counsel then made an offer of proof in question–and–answer form.
30
However, the following part of Sidden’s testimony is part of the record because made
before Respondent objected:
Q. And so after you asked Cynthia [Stephens] what was going on, what
happened?35
A. She just told me what they said and everything.
Q. What did she say they said?
A. She was asking them questions about how they was going to represent us
and everything in the Union when they come in.
Q. And what did they say?40
A. Well, see now, I’m not going to –– if I don’t join the Union, she was
asking them how they was going to represent us and everything because
some of us, if we don’t pay our dues we just going to join because they in
Sam’s Town. And I hadn’t joined yet. And she was telling me what they
said that they wouldn’t represent us if they –– if we had a problem.45
JD(ATL)–31–10
6
At this point, Respondent objected, I sustained the objection, and the General Counsel
made the offer of proof. Solely to analyze whether this offer satisfies the Board’s standards for
the receipt of hearsay, I will consider the testimony given by Sidden during the offer of proof, set
forth below. However, it should be stressed that the testimony below is not part of the record
and I have not relied upon it for any purpose.5
Q. BY MS. GREENBERG: What did Cynthia Stephens say that the union
rep said about non–members?
A. They said they wouldn’t represent us. That if we had to go in front of the
Board and they had to represent us, they would turn their back on us and 10
they wouldn’t represent us.
Q. Did Cynthia Stephens say that they told her to tell you that?
A. Well, I asked her what they were saying because she went up there and
talked. Yes, ma’am, they did say to tell the people that wouldn’t joining
to –– that’s what they was going to do.15
Q. Did you hear anything that was said by Gigi and Pam?
A. No, ma’am, I was going out of the EDR.
Q. Could you determine whether Gigi or Pam was talking loudly?
A. I don’t remember them talking loudly. I could just tell they was upset.
20
MS. GREENBERG: That concludes my offer of proof.
The first prong of the Board’s test asks whether the hearsay statement is rationally
probative in force. I must conclude that the offer of proof was not. It did not identify any
particular union representative. Moreover, Sidden’s testimony derives solely from information 25
provided to her by Charging Party Stephens, and I have concluded that Stephens is not a reliable
witness.
The offer of proof also fails the second part of the Board’s test. It is uncorroborated. (In
this regard, I do not consider Stephens’ testimony to be corroboration because she also is the 30
source of the information provided by Sidden in the offer of proof. Similarly, to the extent that
another witness offered hearsay based on what Stephens said, that information also comes from
Stephens and does not constitute independent corroboration.)
In sum, the offer of proof is not admissible either under the Board’s test or the Federal 35
Rules of Evidence. Therefore, I adhere to my ruling which sustained the objection to this
testimony.
Testimony of Donna Jean Aven
40
Another employee, Donna Jean Aven, also offered testimony concerning statements
made to her by Charging Party Stephens. After Respondent raised a hearsay objection, which I
sustained, the General Counsel made an offer of proof in question–and–answer form.
This offer of proof also did not pass the Board’s two–part test for the admissibility of 45
hearsay. Aven did not identify the union representative who supposedly made the statement
JD(ATL)–31–10
7
attributed to her by Stephens. Further, the information came to Aven from Stephens who was
not, I concluded, a reliable witness. Moreover, this information is not corroborated by any
witness other than Stephens, and Stephens, of course, may not corroborate her own testimony.
Because the offer of proof constitutes inadmissible hearsay under the Federal Rules of 5
Evidence, and because it fails the Board’s test for the admissibility of hearsay, I adhere to my
ruling which excluded this testimony from the record.
Respondent’s Position Statement
10
During the hearing, the General Counsel sought to introduce a June 18, 2010 letter which
Respondent’s lawyer sent to the Board investigator during the precomplaint investigation. In the
letter’s own words, it provided Respondent’s “opening position statement” concerning the
allegations raised by the unfair labor practice charge.
15
Respondent objected to the receipt of the letter into evidence. The General Counsel,
arguing for receipt of the document, cited Steve Aloi Ford, 179 NLRB 229, fn. 1 (1969)(“It is
well settled that the admissions of an attorney in the management of litigation are admissible
against the client.”) However, based on the Board’s more recent decision in Kaiser Aluminum &
Chemical Corp., 339 NLRB 829 (July 25, 2003), I sustained the objection.20
In Kaiser Aluminum & Chemical Corp. the Board held that a position statement
submitted by the union’s lawyer during the investigation of an unfair labor practice charge
constituted attorney work product within the meaning of Rule 26(b)(3) of the Federal Rules of
Civil Procedure. The Board also held that this attorney work product doctrine applied to unfair 25
labor practice proceedings and that the position statement fell within that privilege.
In the present case, the Union is the Respondent rather than the Charging Party, but I
discern no logical reason why a position statement submitted by the lawyer for one party should
be accorded the privilege but the position statement submitted by the lawyer for another party 30
should not. Indeed, it would seem not merely asymmetrical but unfair for the position statement
of one party’s lawyer to be accorded the privilege but a similar statement from the other party’s
lawyer to be denied the privilege.
Another case, in the same volume as the Kaiser Aluminum & Chemical Corp., may have 35
some relevance here. In Local 342=50, United Food and Commercial Workers Union, AFL–
CIO (Pathmark Stores, Inc.), 339 NLRB 148, fn. 1 (2003), the Board stated, “we find it
unnecessary to pass on the judge’s additional statement that position papers submitted by an
attorney for a party also are admissible as admissions.” This language is somewhat unexpected,
considering that 24 years earlier, in Steve Aloi Ford, the Board had considered it “well settled” 40
that the admissions of an attorney were admissible against the client. However, I am reluctant to
infer from footnotes in two cases that the Board is reconsidering how position statements should
be treated.
My research did not find a case in which the Board construed the Kaiser Aluminum & 45
Chemical Corp. holding to be inapplicable to position statements submitted by a respondent.
JD(ATL)–31–10
8
Therefore, I adhere to my ruling sustaining the objection to receipt of this document into
evidence. However, the position statement is preserved in the rejected exhibit file, and thus is
accessible to be placed in the record, should the Board reverse my ruling.
Conclusions of Law5
1. The Respondent, UNITE HERE, is a labor organization within the meaning of
Section 2(5) of the Act.
2. The Employer, Boyd Tunica, Inc., d/b/a Sam’s Town Hotel and Gambling Hall 10
Tunica, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
3. The Charging Party is an individual and an employee of the Employer.
15
4. The Respondent did not violate the Act in any manner alleged in the Complaint.
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended2
20
ORDER
The Complaint is dismissed.
25
Dated Washington, D.C. December 28, 2010
30
____________________________________
Keltner W. Locke
Administrative Law Judge

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–31–10
9
APPENDIX A
Bench Decision
In this case, the government alleges that Union agents made certain coercive statements 5
to employees in the bargaining unit which the Union represented. Because I do not credit the
testimony of the government’s primary witness, I find that a preponderance of the evidence does
not prove any of the alleged violations. Therefore, I recommend that the Board dismiss the
Complaint in its entirety.
10
Procedural History
This case began on May 21, 2010, when the Charging Party filed an unfair labor practice
charge against the Respondent, UNITE HERE, a labor organization. The Charging Party
amended this charge on July 14, 2010.15
On August 27, 2010, after investigation of the charge, the Regional Director for Region
26 of the National Labor Relations Board issued a Complaint and Notice of Hearing, which I
will call the “Complaint.” In issuing this complaint, the Regional Director acted on behalf of the
General Counsel of the Board, whom I will refer to as the “General Counsel” or as the 20
“government.”
Respondent filed a timely Answer.
On November 8, 2010, a hearing opened before me in Memphis, Tennessee. At the 25
beginning of the hearing, the General Counsel amended the Complaint. Respondent denied the
new allegations.
On November 8, both the General Counsel and Respondent called witnesses and offered
documentary evidence. On November 9, counsel presented oral argument. Today, November 12, 30
2010, I am issuing this bench decision pursuant to Section 102.35(a)(10) and Section 102.45 of
the Board’s Rules and Regulations.
Admitted Allegations
35
In its Answer, Respondent admitted the allegations raised in Complaint paragraphs 1(a),
1(b), 2, 3(a), 3(b) 3(c), and 4, and portions of Complaint paragraph 5. Based on those
admissions, I conclude that the General Counsel has proven these allegations. More specifically,
I find that the Charging Party filed and served the charge as alleged.
40
Moreover, I find that the government has proven that the Employer, Boyd Tunica, Inc.
doing business as Sam’s Town Hotel and Gambling Hall, Tunica, is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act.
Further, I find that at all material times, the Respondent, Unite Here, has been a labor 45
organization within the meaning of Section 2(5) of the Act. Respondent’s Answer also admits,
JD(ATL)–31–10
10
and I find, that on the dates of the alleged unfair labor practices, April 23, 2010 and April 27,
2010, the following individuals were its representatives or organizers: Scott Cooper, Gigi
Phillips and Pamela Stitts. Respondent’s Answer does not specifically admit that these
individuals were its agents within the meaning of Section 2(13) of the Act. However, based on
the entire record, I so find.5
Facts
Early in 2010, Respondent engaged in a campaign to organize the employees of Boyd
Tunica, Inc., doing business as Sam’s Town Hotel and Gambling Hall, Tunica, in Tunica, 10
Mississippi. On April 12, 2010, an arbitrator checked the signatures on authorization cards
submitted by Respondent and determined that a majority of bargaining unit employees had
designated the Respondent to represent them. The Employer then granted the Union recognition
as the exclusive bargaining representative of the following unit:
15
All regular full–time and part–time bell department, hotel housekeeping, food and
beverage, banquet, conference services, janitorial, cleaning and laundry
employees (including guest room cleaners, house persons, bell persons, baggage
handlers, door persons, change persons/slot attendants, booth cashiers, cooks,
kitchen employees, kitchen utility employees, servers, bussers, bartenders, dining 20
room cashiers, restaurant hosts and hostesses, non–hotel public space cleaners,
specialty floor cleaners, laundry workers), but excluding all secretarial, office
clerical, sales and all managers, supervisors, and guards as defined in the National
Labor Relations Act.
25
The Charging Party, Cynthia Stephens, works for the Employer as a food server and is a
member of this bargaining unit.
At some point – from the record it is not clear whether this was before or just after the
April 12 recognition – Charging Party Stephens embarked on an effort to obtain employee 30
signatures on a petition opposing the Respondent. In other words, she sought to reverse the
decision which bestowed recognition on the Union. To various employees, she voiced concerns
that there might be a strike and that the Employer’s practice of providing free meals to workers
would end. It is not clear how those concerns arose.
35
Then on May 21, 2010, Ms. Stephens filed the unfair labor practice charge which began
this proceeding. In that charge, Ms. Stephens alleged that the Union made certain statements
which restrained and coerced employees in the exercise of their Section 7 rights, in violation of
Section 8(b)(1)(A) of the Act.
40
The Complaint alleges that Respondent’s agents made a number of such statements on
April 23 and April 27, 2010. Although the General Counsel called a number of witnesses during
the hearing, the government depends on Ms. Stephens’ testimony to prove each of the unfair
labor practice allegations and without that testimony, each of the allegations cannot be
established. Therefore, this case turns on Ms. Stephens’ credibility.45
JD(ATL)–31–10
11
Before examining that matter, it may be helpful to summarize the alleged violations. In
some respects they have changed because the General Counsel amended the Complaint at
hearing.
Complaint paragraph 6(a) alleges that Respondent, by Gigi Phillips, at the Employer’s 5
facility, on or about April 23, 2010, told an employee that the employee could not resign from
the Union.
Complaint paragraph 6(b) alleges that Respondent, by Gigi Phillips, at the Employer’s
facility, on or about April 27, 2010, told an employee that Respondent would not represent 10
employees who did not pay union dues and instructed the employee to tell employees who did
not want to be dues paying members that they would not be represented.
The original Complaint did not include a paragraph 6(c), which was added by the
amendment during the hearing. This amendment bears examination because it suggests that the 15
Charging Party may have provided incorrect or at least confusing information during the pre–
Complaint investigation.
The original Complaint included, in its paragraph 8, an allegation that on or about April
27, 2010, Respondent’s agent Pamela Stitts told an employee not to call the National Labor 20
Relations Board and threatened the employee with bodily harm when the employee asked what
would happen if the employee returned to work during a strike.
The amendment left untouched the allegation that Respondent, by Pamela Stitts, had
threatened an employee with bodily harm. However, it deleted the allegation that Stitts had told 25
an employee not to call the National Labor Relations Board.
However, the amendment placed, in a new paragraph 6(c), an allegation that on or about
April 27, 2010, Respondent, by Gigi Phillips, told an employee not to call the National Labor
Relations Board. Ms. Stephens gave testimony to that effect during the hearing. Deletion of the 30
allegation that Respondent’s agent Stitts had made the statement, and substitution of an
allegation that Respondent’s agent Phillips had made the statement, suggests that the Charging
Party had been confused. Other evidence pertaining to confusion will be discussed below.
Complaint paragraph 7(a) alleges that Respondent, by Scott Cooper, on or about April 23, 35
2010, at the Employer’s facility, failed to provide an employee with correct information
concerning resignation of union membership. Complaint paragraph 7(b) alleges that
Respondent, by Scott Cooper, on or about April 27, 2010, during a telephone conversation with
an employee failed to provide the employee with correct information regarding dues revocation.
40
These allegations, about resignation of union membership and revocation of a dues
checkoff authorization, are similar enough to cause confusion. For reasons discussed below, I
am concerned that the Charging Party did confuse or conflate the resignation of union
membership and the revocation of dues checkoff.
45
JD(ATL)–31–10
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Complaint paragraph 8, as amended at hearing, includes subparagraphs (a) and (b).
Subparagraph (a) alleges that on or about April 27, 2010, Respondent, by its agent Pam Stitts,
threatened an employee with bodily harm when the employee asked what would happen if the
employee returned to work during a strike. Subparagraph (b) alleges that on or about April 27,
2010, Respondent, by Stitts, told an employee that Respondent would not represent employees 5
who did not pay union dues and instructed the employee to tell employees who did not want to
be dues–paying members that they would not be represented.
The allegations just described are the only unlawful acts alleged in the Complaint. The
General Counsel relies on the testimony of Charging Party Stephens to establish each of these 10
allegations. However, based on my observations of the witnesses, I conclude that Ms. Stephens’
testimony is not reliable and do not credit it, even when it is uncontradicted.
In general, the Charging Party’s testimony tended to ramble and to be confusing, but that
alone would not be enough to persuade me that it was too unreliable to have any probative value. 15
However, there are more specific reasons to doubt its reliability.
Some of my concerns about the Charging Party’s testimony arose in connection with her
description of a conversation she had with two of Respondent’s agents, Gigi Phillips and Pamela
Stitts, on April 27, 2010. She testified that she had been smoking a cigarette in the smoking 20
room at work when another employee, Rose Williams, entered.
Stephens told Williams that there was a chance that the employees would have to begin
paying for their food and a chance that they might go on strike. Williams replied, “I don’t
believe that.” The two decided to speak with two Union representatives who were on the 25
Employer’s premises.
The two Union representatives, Phillips and Stitts, were in the employee dining room,
which adjoined the smoking room. Up to this point in her testimony, Charging Party Stephens
had appeared confident and assured. However, when she began to describe her questioning of 30
the Union representatives, she gave the impression of being unable to recall her question without
referring to notes which, she admitted on cross–examination, she had prepared the night before
the hearing. For two reasons, her reliance on those notes raised questions about her memory and
credibility.
35
Obviously, any witness’s recourse to notes may call into question the accuracy of her
independent memory. Moreover, in Ms. Stephens’ case, there seemed to be an unexplained lack
of consistency between how much she recalled of her conversation with the other employee,
Rose Williams, and how much she remembered about her contact with the Union
representatives. The difference between her confident demeanor while testifying about her 40
conversation with Williams, and her reliance on notes when testifying about what the Union
representatives said, seems hard to explain.
After all, the statements attributed to the Union representatives bothered Ms. Stephens
enough that she later filed unfair labor practice charges. It would be reasonable to assume that a 45
witness would be more likely to recall a comment that caused her distress than an innocuous
JD(ATL)–31–10
13
remark to a friend.
Stephens testified that, in response to a question, one of the two Union representatives,
Stitts, said that she legally would have to represent an employee who was not a Union member
but that, during grievance meetings, she would “turn my back on their asses.” 5
Stephens also said that she told the Union representatives she had called the Labor Board
with some questions. According to Stephens, Union representative Phillips replied, “First of all,
don’t call the Labor Board” that instead, she should come to the Union.
10
Stephens’ hesitant demeanor while giving this testimony raises doubts in my mind.
Moreover, although another employee, Williams, accompanied Stephens, Williams did not
testify. Although Gigi Phillips also did not take the stand, she no longer was employed by the
Union at the time of hearing and I draw no adverse inference from her failure to appear.
15
On cross–examination, Stephens not only admitted that she had written her notes the
night before the hearing – they were not contemporaneous with the events – but also admitted
that she had tried to memorize other parts of her testimony.
Although I do not believe she consciously lied, she certainly had taken a position20
opposite the Union even before filing the charge. At some subconscious level, this may have
affected her memory.
Even if it did not, the potential for confusion and conflation is so great, and my doubts
about the reliability of Williams’ testimony are so great, that I cannot credit that testimony even 25
when uncontradicted. The preponderance of the evidence standard requires proof that an alleged
action or statement more likely happened than not. Stephens’ testimony does not meet this
standard.
Therefore, I recommend that the Board dismiss the Complaint in its entirety.30
When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
and Order. When that Certification is served upon the parties, the time period for filing an 35
appeal will begin to run.
Throughout the hearing, counsel displayed professionalism and courtesy which truly are
appreciated. The hearing is closed.
40