Sartain Truck Lines, Inc.

SARTAIN TRUCK LINES, INC. Sartain Truck Lines, Inc. and Highway and Local Motor Freight Employees, Local Union No. 667, an affiliate of the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 26-CA-4432 . April 6, 1973 , DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 3, 1973, Administrative Law Judge Thomas S. Wilson issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations , Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant` to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 1 The Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRI; 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Administrative Law Judge: Upon a charge duly filed on July 27, 1972, by Highway and Local Motor Freight Employees, Local No. 667, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Charging Party or the Union, the General Counsel of the National Labor Relations Board, referred to herein as the General Counsel' and the Board respectively, by the Regional Director for Region 26 (Memphis, Tennessee), 1 This term specifically includes the attorney appearing for the General Counsel at the hearing. 2 Subsequent to the hearing the parties agreed, in a "Motion to Correct 955 issued his complaint dated September 14, 1972, against Sartain Truck Lines, Inc., herein referred to as the Respondent. The complaint herein alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held before me in Memphis, Tennessee, on November 20, 1972. All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence materi- al and pertinent to the issues. At the opening of the hearing, General Counsel moved to strike certain allega- tions of Respondent's answer. This motion was allowed. Also, at the commencement of the hearing, General Counsel moved to add an allegation to his complaint that a strike which began on November 22, 1971, was trans- formed from an economic strike into an unfair labor practice strike by Respondent's refusal to bargain on May 3, 1972. This'motion was allowed. At the conclusion of the hearing, oral argument was waived. Briefs have been received from General Counsel and Respondent on December 18, 1972.2 _ Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF RESPONDENT Sartain Truck Lines, Inc., is now, and has been at all times material herein, a corporation with an office and terminal located in Memphis, Tennessee, where it is engaged in the transportation of freight in interstate commerce by truck. During the past 12 months, Respon- dent, in the course and conduct of its business operations at Memphis, Tennessee, derived gross revenue in excess of $50,000 from furnishing transportation services directly across state lines in interstate commerce. Based upon these allegations of the complaint and the admission of their truth in Respondent's answer, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce .within the meaning of Section 2(6) and (7) of the Act; II. THE CHARGING PARTY Highway and Local Motor Freight Employees,' Local Union No. 667, an affiliate of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization admitting to membership employees of Respondent. Record," upon certain corrections to the transcript. These corrections are hereby allowed. 202 NLRB No. 140 956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Facts This'case is an anomaly: A one sentence unfair labor practice case. If that sentence was spoken, as testified to by Union Secretary-Treasurer J. V. Pellicciotti, then Respon- dent violated Section 8(a)(5) by conditioning further bargaining with the Union upon the Union's dismissal of certain other charges then pending before the Board. On the other hand, if Respondent's attorney and bargaining representative, Edward G. Grogan, did not utter that sentence, which he denied having done in part.for the reason that he "knew better than to condition [further bargaining] on [the withdrawal of other charges]," then Respondent committed no unfair labor practice in the instant case. There is, however, a credibility issue raised between Pellicciotti The legal issue presented here is that simple. and Grogan which is as tough as the legal issue is simple. 1. Background The Union here had been certified as the collective- bargaining representative for the employees in an agreed- upon appropriate unit on August 18, 1971. Thereafter, Respondent and the Union held approxi- mately seven bargaining sessions between September 7, 1971, and January 21, 1972. These occurred on September 7, October 7, November 8, November 29, 1971, and January 21, 1972. Apparently in the belief that Respondent was "stalling" in the negotiations, some 14 of Respondent's employees went out on strike on November 22, 1971. , In 1971, the Union had filed a charge in Case 26-CA-4156 alleging violations of Section 8(a)(l), (3), and (5) by Respondent. The Regional Office refused to issue a complaint upon the five alleged discharges. The Union appealed this refusal by the Regional Director to the General Counsel. This appeal was denied by the General Counsel on January 21, 1972. On January 23, the parties entered into a settlement of the 8(a)(1) and (5) issues of that charge. Following the last negotiation meeting on November 29, 1971, Grogan, under, date of December 10, 1971, sent Local President Augustine, who was then handling the negotiations, a letter requesting information from him regarding the Union's views on the effects of Phase II of the economic control program upon the Union's proposed economic benefits, fringe benefits, and wage increases. On January 21, 1972, Pellicciotti' for the Union and Grogan for the Respondent held another bargaining session. This was Pellicciotti's first appearance at one of these sessions as at. the prior sessions the Union had been represented by its president, Augustine. According to Pellicciotti, he thought that Respondent and the Union had reached agreement at the conclusion of the January 21 meeting, subject only to ratification by the Union and by Respondent's president. According to Grogan, although a number of matters were settled during that session, a number of economic issues including wages, pensions, and health and welfare insurance still remained unsettled at the end of the meeting. On April 7, the Union filed other charges against the Respondent in Case 26-CA-4313, alleging further viola- tions of Section 8(a)(1) and (3) of the Act, specifically in regard to 14 other alleged discharges. On April 28, the Regional Director dismissed these charges in their entirety with notice to the parties that any appeal from his action must be made to the General Counsel by May 11. The parties received this notification in the due courseof mail on or about April 29. After a number of vain efforts by Pellicciotti to reach Grogan to arrange another negotiation meeting after that of January 21, Pellicciotti finally requested the Federal Mediation Service to arrange such a negotiation meeting. Through a letter dated April 25, Federal Mediation succeeded in arranging such a meeting for May 3 at 10 a.m. 2. May 3 meeting Pellicciotti arrived on time for the 10 a.m. meeting on May 3. About 10 o'clock, Grogan telephoned that he would be a few minutes late. Up to this point, the testimony of Pellicciotti and Grogan is in accord. From this point the testimony of the two witnesses is at complete variance. According to the testimony of Pellicciotti, upon Gro gan's arrival, Federal Mediator Stokes, Pellicciotti, and Grogan went into, an office and sat down. Grogan thereupon inquired of Pellicciotti as to what the Union was going to do about the charges (in Case 26-CA-4313) which the Regional Director had just dismissed. Pellicciotti answered that he did not know because he was not familiar with it. Thereupon, Grogan replied, "Until this was settled, that he had nothing to talk about." Grogan thereupon rose and departed, effectively ending the meeting after only 5 or 10 minutes. According to the testimony of Grogan, who also relied upon the fact that he "knew better" than to condition. further bargaining upon the Union's action on the dismissal, he asked Pellicciotti, "If the Union had sought any legal advice on maximum raises and benefits that could be granted under Phase II of the economic control act" and specifically about the cost of the Union's pension plan, insurance, and health and welfare. After Pellicciotti acknowledged that he had no information on these questions, the meeting then mutually broke up after some 30 or 45 minutes by mutual accord. Also, according to Grogan, this conversation took place in the absence of any representative of the Federal Mediation Service as Stokes had merely shown them to a room and then departed.3 B. Conclusions So this case gets down to who said what to whom on May3. 3 Neither side made any effort to call Federal Mediator Stokes as a witness, so Stokes did not testify. SARTAIN TRUCK LINES, INC. 957 It is obvious that nobody said much. It was a short meeting. According to Pellicciotti, he considered that the Union and Respondent had arrived at an agreement at the meeting of January 21, subject only to ratification by Sartain and the Union. Yet, he admittedly called no ratification meeting of his members, ostensibly because he was waiting for Sartain's ratification. For a union official with what he considered to be an agreement, Pellicciotti proved to be a very patient man, especially with his members on a picket line. His patience lasted from January 21 to April 25 with a few disputed, telephone calls to Grogan interspersed. Such patience, under the circum- stances, creates doubts regarding the alleged " agreement." According to Pellicciotti, he really did not know what Grogan was referring to on May3 when he asked what the Union intended to do about an appeal of the Region's dismissal of the 8(a)(3) charges relating to the alleged discharges of 14 union members. If so, Pellicciotti was not well prepared for his long-awaited meeting with Grogan. However, he did promptly get in touch with his lawyer about that matter after the meeting. Still, with what would appear to be a patent unfair labor practice occurring in the May 3 meeting, if Pellicciotti is to be believed, the Union did not file charges thereon in the instant case, which might well have aided its 14 recently unemployed members, until July 27. The delay creates doubts as to the Union's belief that Grogan had actually conditioned further bargaining upon the dismissal of the charges relating to the 14. This doubt is enhanced by the fact that on May 8 Grogan consented to an extension of the time for appealing the Regional Director's actions of April 27. All the above create doubts as to the accuracy of Pellicciotti's memory as to the conversation at the meeting of May 3. However, on. the other hand, Grogan's• first defense 4 There are, of course, a few facts in this record which seem to confirm the testimony of both Pellicciotti and Grogan. 5 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, seems to be that he "knew better than to condition" further bargaining on the Union's action regarding that appeal. Without meaning to impugn Grogan's competence, even the best of us do on occasion make mistakes as the courts have found. Furthermore, there are definite indications from the length of time these negotiations had been going on, from the long delays between negotiating sessions, and from the difficulties of reaching Grogan by telephone which might well indicate that Grogan was at least in no hurry to arrive at any agreement with the Union. However, the Regional Director in his wisdom did not see fit to pursue that theory of the case and, in fact, stipulated that through January 21 Respondent had bargained in good faith with the Union which, of course, removes these aspects from consideration here. Regardless of the Regional Director's action, these facts do cast some doubts upon Grogan's version of the conversation on May 3.4 However, the pivotal point here is that the burden of proof rested upon the General Counsel and remained with him throughout. Hence, due to the doubts cast upon the testimony of Pellicciotti, I have to hold that the General Counsel has failed to sustain his burden of proof and I will, consequently, dismiss this case in toto. Upon the entire record in this case and from my observation of the witnesses, I make the following:5 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent did not refuse to bargain in violation of Section 8(a)(5) of the Act. RECOMMENDED ORDER I hereby order this case dismissed in toto. 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.