NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,437, DAYTON HUDSON DEPARTMENT STORE COMPANY, DIVISION OF DAYTON HUDSON CORPORATION and INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, AFL-CIO., (Aug. 18, 1994), National Labor Relations Board, (Aug 18, 1994)

302 NLRB 982.

Dayton Hudson Department Store v. NLRB, [124 LC ¶10,600] 987 F.2d 359 (6th Cir. 1993).

In its Objection 2, the Respondent alleged that the Union’s May 8, 1990 letter intentionally contained gross misrepresentations of material facts about the Respondent’s profits and that its distribution was timed to preclude any effective response. The court upheld the Board’s decision to overrule Objection 2 insofar as the Respondent alleged that the Union’s campaign flyer distributed on the day of the election, May 11, 1990, constituted a forged document. The court also upheld the Board’s decision to overrule Objections 3 and 4.

In its motion to reopen the record, the Respondent alleged that the Union had forged authorization cards and had used these to claim widespread support for the Union during the campaign.

The Respondent 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 preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

Here the judge based his findings not only on the demeanor of the witnesses, but also on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inference drawn from the record as a whole. In particular, we agree with the judge’s finding that John Madgwick’s claim that he forged authorization cards is a “total fabrication.” The Respondent errs in claiming that the delay of almost 4 years from the events at issue and the hearing about them impaired the judge’s credibility findings. To the extent that delay may have adversely affected any testimony, it would have equally affected all witnesses, not just those of the Respondent. See Bell Foundry Co. v. NLRB, [107 LC ¶10,170] 827 F.2d 1340, 1343 (9th Cir. 1987). Moreover, the judge did not rely on imprecision and vagueness alone in making his credibility findings. He specifically cited demeanor as well as the panoply of considerations outlined above. We refer especially to the judge’s analysis of the testimony of John Madgwick, Rosemary Minni, and Suzann Roberts. We find no error in the judge’s credibility findings.

In its exceptions, the Respondent asserts that Region 7’s mishandling of authorization cards deprived the Respondent of the “full inquiry” mandated by the court on remand. The Respondent refers to the fact, which was revealed at the hearing, that on November 9, 1992, the Region inadvertently returned cards to the Union from the Respondent’s Westland store rather than from the Respondent’s Fairlane store. (The Fairlane store was the subject of a withdrawn election petition also involving the Union). The Union returned the Westland cards on November 23, 1992, when the Union discovered the mistake. With reference to this incident, the Respondent’s counsel acknowledged on the record that there was “no evidence or suggestion that what has been represented by the General Counsel or by [counsel for the Union] is not entirely true.” The parties also stipulated that there were 268 Westland cards stamped with the Region’s March 12, 1990 date, the day the Union filed its petition, bearing the names of employees in the bargaining unit at that time.

In its brief to the judge, the Respondent referred to this incident and asserted that it had been deprived of an opportunity to investigate the 2-week period that the Union had possession of the cards. The judge correctly dismissed the Respondent’s arguments by noting that at no time had the Respondent sought a continuance; that the 268 cards bore the Region’s March 12, 1990 stamp; and that the Respondent made no suggestion of any motive for tampering with the stamped cards or how such tampering could have affected the outcome of this case.

The Respondent now states in its exceptions that the Union had the opportunity to sanitize the time-stamped cards by removing those that allegdly had been fraudulently signed. The Respondent refers to no evidence to support this allegation. We find no merit in this attempt by the Respondent to resurrect its forged-cards allegation. Judge Ladwid has rendered the “full inquiry” mandated by the court and found that John Madgwick’s tale of forged cards is a “total fabrication.” We agree with this finding. The Respondent’s innuendo in no way contravenes it.