Pergament United Sales, Inc. v. N.L.R.B.

• Decision Date: 27 November 1990
• Docket Number: 119,D,Nos. 19,s. 19
• Citation: 920 F.2d 130
• Parties: 135 L.R.R.M. (BNA) 3222, 117 Lab.Cas. P 10,438 PERGAMENT UNITED SALES, INC., Pergament Westbury Corp., Pergament Distributors, Inc. and Pergament Home Centers, Inc., Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. ockets 89-4131, 89-4153.
• Court: U.S. Court of Appeals — Second Circuit

Page 130

920 F.2d 130

135 L.R.R.M. (BNA) 3222, 117 Lab.Cas. P 10,438

PERGAMENT UNITED SALES, INC., Pergament Westbury Corp. Pergament Distributors, Inc. and Pergament Home Centers, Inc., Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 19, 119, Dockets 89-4131, 89-4153.

United States Court of Appeals Second Circuit.

Argued Aug. 30, 1990.

Decided Nov. 27, 1990.

Lea Hixson (Jessel Rothman, P.C., Mineola, N.Y., of counsel), for petitioner-cross-respondent.

Nancy B. Hunt (Judith A. Dowd, Supervisory Atty., Jerry M. Hunter, General Counsel, Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., of counsel), for respondent-cross-petitioner.

Before FEINBERG and CARDAMONE, Circuit Judges, and RE, ^* Chief Judge.

CARDAMONE, Circuit Judge:

Petitioners appeal from an August 29, 1989 order of the National Labor Relations Board (Board) finding that they violated Sec. 8(a)(4) of the National Labor Relations Act, 29 U.S.C. Sec. 158(a)(4) (1988) (Act), and ordering them to cease and desist from certain unfair labor practices and to undertake certain affirmative actions to remedy their violation of the Act. Petitioners on this appeal (respondents in the proceedings below) are a number of corporations formed by the Pergament family, and are hereafter collectively referred to as Pergament. Pergament was charged with a Sec. 158(a)(3) violation, but found by the Board to have committed a Sec. 158(a)(4) violation, for which it had not been charged. It contends its due process rights were thereby violated, and petitions to set aside the Board's order. The Board has cross-moved for its enforcement.

Plainly, Pergament was entitled to be advised as to the basis of the complaint against it and afforded an opportunity to explain its conduct. But it knew from the outset that the issue before the hearing officer and the Board was its alleged discrimination in hiring against certain employees by reason of their membership in a local union. The statute makes it an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization," 29 U.S.C. Sec. 158(a)(3), and it also makes it an unfair labor practice for an employer to discharge or discriminate against an employee because he or she has filed an unfair labor practice charge. See 29 U.S.C. Sec. 158(a)(4). The underlying conduct that provided a basis for the Sec. 158(a)(3) charge against Pergament is closely connected to the conduct forming the Sec. 158(a)(4) findings. Because this underlying issue was fully and fairly litigated, the Board's order is enforceable.

BACKGROUND

The Pergament brothers own a two-story retail discount center in Bethpage, New York, most of which had been leased for some years to 22 licensed concessionaires selling men's and ladies' wear, shoes, toys, records, jewelry, liquor, luggage and the like. The concessionaires' employees were represented by Local 1245, United Food & Commercial Workers International Union, AFL-CIO and Pergament retained the right under its leases to enter into collective The instant litigation was precipitated on January 13, 1987 when Pergament sent a letter to Local 1245 advising it that the licensees had been asked to vacate the center by January 31, and that Pergament planned to occupy the entire building itself, using only Local 1815 employees. The letter stated that as of February 1, 1987 no Local 1245 employees would be working at the Bethpage store. A February 25 letter to concessionaire employees stated that former concessionaire employees were welcome to apply for Pergament positions and that Local 1815 would waive an initiation fee.

bargaining agreements with the union on the concessionaires' behalf. Pergament had its own retail operation and its own employees, who were represented by Local 1815, International Brotherhood of Pointers & Allied Trades, AFL-CIO.

On March 3, 1987 Local 1245 filed charges with the NLRB alleging violations of Secs. 8(a)(1), (2), (3), and (5) of the Act. ¹ On June 24, 1987 the NLRB brought a formal complaint against Pergament alleging violations of the same four sections of the Act. It claimed Pergament discriminated against its own employees by encouraging membership in Local 1815 and by discouraging membership in Local 1245. The complaint was later amended to list the names of 13 individuals--former employees of licensees at the center and members of Local 1245--whose Sec. 8(a)(3) rights had allegedly been violated.

A. Hearing

In December, 1987 an Administrative Law Judge (ALJ) conducted a hearing on the charges set forth in the Board's complaint. Two of the 13 individuals did not testify and the ALJ determined there was insufficient proof they had ever filed applications for employment with Pergament. With respect to the other 11 employees, the amended complaint alleged they had completed employment applications to be hired by Pergament, but were refused hire due to their union activities and their support for Local 1245. The General Counsel called eight of them and Local 1245's representative as witnesses. Pergament produced its attorney, Jessel Rothman, and Robert Kramer, its vice president and personnel director, and John Simoncic, a former vice president.

Charlotte Zimmerman, one of the eight Local 1245 employees, testified she called Kramer on March 28, 1987 and identified herself and the department she had worked in. She said Kramer told her Pergament had every intention of hiring the concessionaires' terminated employees "but there was a trial coming up and that is the reason why we didn't hear from them." She said Kramer told her he would get in touch with the attorney and see if there was any way to hire her and her colleagues despite the impending trial, but that no one from Pergament ever contacted her.

Doris Levine testified she worked in the same department as Zimmerman and had filed an application with Pergament, but had never been contacted about a job. She never complained or called anyone about not getting a job, she said, because Zimmerman had told her about the conversation with Kramer, and as a result Levine believed Kramer would not be able to do anything for her if she called.

While the testimony of the other six former employees of the licensees differed in minor detail, all agreed essentially that they had filled out applications for Pergament jobs, they had heard about Kramer's meeting with Local 1245 employees and the statements he made at that time, and had seen Pergament signs or advertisements seeking full and part time employees during the time they were waiting to hear Kramer stated Pergament had delayed hiring concessionaire employees prior to February in order to maintain friendly relations with the concessionaires, but a rumor started that the employees would be fired. On February 28th, Kramer met with Local 1245 employees and promised no one would be laid off. After the meeting, a union representative called Kramer and told him Local 1245 disagreed with Pergament's statements to the employees.

about their own applications. All except one testified that they never received job offers from Pergament. Elly Kircher testified Pergament offered her a job as a full-time cashier, even though she had applied for part-time sales and stock work and even though Pergament was running advertisements at the time seeking part-time help. Kircher also stated that Pergament never contacted her about a job after she refused the full-time job offer. All of these employees save Zimmerman testified that they had done work in all three areas in which Pergament needed help--sales, stock, and cashiering. The union representative testified there were approximately 40 members of Local 1245 employed by Pergament licensees.

"At that point it stopped. Within that week I got the lawsuit ... at that point there was a lot of confusion because I didn't know how to act. When I get litigation I stop ... the minute I got it ... I put a freeze on everything....

I remember that woman calling me ... during that period of time I didn't know what to do. I have never been sued before. I had no idea, should I accept the people, shouldn't I accept the people? At that point there was a certain degree of us holding back."

Kramer also said during the spring of 1987 Pergament was desperate to hire people, but that the applications of the 11 employees had somehow been inadvertently mislaid. He denied the applications were processed or seen by anyone involved in hiring. He said further when he received the complaint alleging Pergament's failure to hire, he drove out to the union office to find out the names of the employees Pergament had been accused of not hiring, but the union refused to give the Local 1245 list to him. Kramer averred he never read the amended complaint listing the 13 employees' names, and he also claimed that he did not recognize any of the names, when he read the complaint cover to cover.

In the course of the hearing, the ALJ was told by Pergament's counsel its position was that "[w]e did not preclude anyone from employment as we are not precluding anyone today from employment based on any grounds at all other than sheer incompetency."

B. ALJ's Findings

On October 31, 1988 the ALJ ruled Pergament had not violated the sections with which it was charged, but that it had violated Sec. 8(a)(4) of the Act because it had refused to hire the 11 employees as a result of the Local 1245 litigation.

The hearing officer found Kramer must at least have seen the amended complaint because he testified he did not recognize the names listed in it, and the amended complaint was the only document that named them. He did not credit Kramer's testimony that he could not offer the women positions because he did not know their names...