N.L.R.B. v. Payless Cashway Lumber Store of South St. Paul, Inc., 74-1289
| Decision Date | 19 December 1974 |
| Docket Number | No. 74-1289,74-1289 |
| Citation | 508 F.2d 24 |
| Parties | 88 L.R.R.M. (BNA) 2067, 75 Lab.Cas. P 10,537 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PAYLESS CASHWAY LUMBER STORE OF SOUTH ST. PAUL, INC., Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard A. Cohen, Atty., N.L.R.B., Washington, D.C., for petitioner.
James M. Samples, Faegre & Benson, Minneapolis, Minn., for respondent.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
The National Labor Relations Board asks this Court to enforce a bargaining order against Payless. Payless defends on the ground that the Board's certification of the Union 1 is invalid. We refuse to enforce the Board's order because we believe that remarks made by a public official at a Union election-eve meeting were coercive and so closely related to the election that they had a probable effect on the employees' actions at the polls.
An election by secret ballot was conducted among certain Payless employees on August 15, 1972. The Union won the election by a fourteen to nine vote. A week later, Payless filed timely objections to conduct affecting the results of the election. It alleged, in substance, that: (1) the Union misstated material facts to which the company had no opportunity to reply; (2) the Union threatened and intimidated employees; (3) a prominent local person interfered with the election and threatened violence to an employee's person and property; and (4) the election was conducted in an atmosphere of fear, coercion and misrepresentation. The Acting Regional Director conducted an investigation and issued his report and recommendations in which he overruled objections relating to alleged misrepresentations and directed that a hearing be held on the following objection:
At the (Union's) meeting with employees on the night of August 14, an official of the City of South St. Paul (the Acting Mayor, Michael Verderosa) was introduced to the employees by a representative of the (Union) and made a short speech. The city official is alleged to have asked whether a particular employee favored the Union, and then to have stated that this employee had better favor the Union or he would slit his tires. The city official denies making these remarks.
Sixteen witnesses, including Verderosa, testified at the hearing. The Hearing Officer found that Verderosa had attended the meeting and that prior to its start, he had engaged in a conversation with Emil Forrester, a former employee of Payless. He summarized the testimony of employee witnesses as follows:
* * * The testimony above reveals that a great deal of confusion exists with regard to what Mr. Verderosa actually said in his conversation with Emil Forrester.
Stover, Steven Schmitt, Walls, Anderson, Schwingle, Dorsey, Turner, Rossing, Klug, Reid, Brown and Mertens either did not overhear Verderosa's conversation with Forrester or recalled very little of the conversation referred to above. There, I find their testimony of little probative value.
This leaves only the testimony of Kraemer, Thomas Schmitt and Verderosa. Kraemer could not recall the exact words used by Verderosa or recall the nature of the conversation immediately preceding or following his version of the conversation. For this reason, as well as the demeanor of this witness while testifying, I do find his testimony unreliable.
Thomas Schmitt, likewise, did not recall the nature of the conversation immediately preceding or following his version of the conversation. This witness's convenient memory is particularly important since, according to testimony, he took notes at the meeting which he later gave to the Employer. Based on the foregoing, and the demeanor of the witness while testifying, I discredit the testimony of this witness.
The conversation between Verderosa and Forrester was a personal conversation and was merely overheard, in part by others. I, therefore, conclude that Verderosa, himself, was in the best position to give the most accurate version of his conversation, and credit the testimony of Verderosa, based on the foregoing, his forthright attitude while testifying, and his total demeanor.
The Hearing Officer summarized Verderosa's testimony as follows:
* * *
The Hearing Officer found that neither Verderosa's presence nor the statement he made prior to the formal commencement of the meeting raised substantial or material issues with respect to conduct affecting the results of the election.
Exceptions to the Hearing Officer's report and recommendations were taken by the employer. The Board accepted the Hearing Officer's findings as to what was said by Verderosa but rejected his findings as to when the remarks were made; it found that the remarks occurred during the Union meeting rather than in a conversation with Forrester before the meeting. It concluded that the remarks did not reasonably have any significant impact on the election.
Thereafter, the employer refused to bargain and the Board issued a complaint charging the employer with refusal to bargain. It determined in a summary proceeding that Payless had refused to bargain and that all issues raised in defense of Payless had been litigated and foreclosed in the prior representation proceeding. See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 157-163, 61 S.Ct. 908, 85 L.Ed. 1251 (1941). This enforcement proceeding followed.
We are convinced from a careful reading of the record that the Board's findings with respect to what Verderosa said are not supported by the record as a whole. The Hearing Officer's sweeping finding, adopted by the Board, that Stover, Steven Schmitt, Walls, Anderson, Schwingle, Dorsey, Turner, Rossing, Klug, Reid, Brown and Mertens either did not overhear Verderosa's conversation with Forrester with reference to slitting an employee's tires, or recalled very little of the conversation, is simply not supported by the record. Five of the twelve-- Rossing, Klug, Reid, Brown and Mertens-- testified, in substance, that Verderosa stated at the election-eve meeting that an employee's tires would be slit if he did not support the Union.
Rossing testified that when someone in the front of the room-- to the best of his recollection, Verderosa-- was asked, before the meeting, whether a trucker should be a member of the Union, he replied, "He had better be,' or they would do something to his front tires, cut them or slash them, I don't remember the exact words.'
Klug testified that Verderosa made a statement just before or during his formal remarks to the effect that 'we'll slash his tires.' He further testified that he initially thought that the statement was directed...
To continue reading
Request your trial
-
LaCrescent Constant Care Center, Inc. v. N.L.R.B.
...§ 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487--88, 71 S.Ct. 456, 95 L.Ed. 456 (1951); e.g. NLRB v. Payless Cashway Lumber Store, Inc., 508 F.2d 24 (8th Cir. 1974).18 NLRB v. Houston Chronicle Publishing Co., 300 F.2d 273, 280 (5th Cir. 1962), quoted in Gallenkamp Stores Co. v.......
-
N.L.R.B. v. Hale Mfg. Co., Inc., 77-1280
...from its weight." Accord, NLRB v. Century Broadcasting Corp., 419 F.2d 771 (8th Cir. 1969); see NLRB v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24 (8th Cir. 1974); NLRB v. Alva Allen Industries, Inc., 369 F.2d 310 (8th Cir. Applying this standard to the facts of this ......
-
Bauer Welding and Metal Fabricators, Inc. v. N.L.R.B.
...sufficiently coercive that it has a probable effect on an employee's actions at the polls. See NLRB v. Payless Cashway Lumber Store of South St. Paul, Inc., 508 F.2d 24, 28 (8th Cir. 1974). Furthermore, even where an incident of misconduct, not insubstantial in nature, 3 is insufficient by ......
-
Wyman-Gordon Co. v. N.L.R.B.
...656, 69 S.Ct. 1283, 93 L.Ed. 1602 (1949), in this instance the record calls his finding into question. Cf. NLRB v. Payless Cashway Lumber Store, 508 F.2d 24, 27-28 (8th Cir. 1974) (rejecting credibility determinations of ALJ and Board). The record indicates that Wilson knew generally that h......