General Teamsters, Chauffeurs and Helpers Local 249

GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS LOCAL 249 245 General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca (Penn Erection and Rigging Company) and Philip Quinn. Case 6-CB-2369 November 13, 1973 DECISION AND ORDER credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings 2 We disavow any reliance on the Administrative Law Judge's statement that he need not consider defense evidence where he finds that the General Counsel has not met his burden of proof and his further statement that consideration of defense evidence under these circumstances would amount to an attempt to support otherwise unsupportable allegations and is therefore precluded by due process. Inasmuch as the Administrative Law Judge nevertheless considered the evidence presented by the Respondent no prejudicial error was committed. BY MEMBERS FANNING, KENNEDY, AND PENNELO On March 28, 1973, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the 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 brief and has decided to affirm the rulings, findings,' and conclusions 2 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 be dismissed in its entirety. MEMBER KENNEDY, dissenting: I would remand this case for a new hearing because the Administrative Law Judge failed to resolve the credibility conflicts in the testimony of the five witnesses called by the General Counsel and Respon- dent. The Administrative Law Judge "found that no witness of the General Counsel can be credited" and that Respondent's two witnesses "are equally unreli- able as General Counsel's three." I do not agree with the observation of the Administrative Law Judge that the record does not provide an "intelligible basis for factual findings of what actually occurred." Under these circumstances, I would remand the case for a new hearing before a different Administrative Law Judge with instructions to prepare a decision which complies with Section 102.45 of the Rules and Regulations of the National Labor Relations Board, Series 8, as amended. i The General Counsel 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 DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law,Judge: Upon a charge and an amendment thereto filed on April 18 and June 22, 1972, respectively, by Philip Quinn, an individual, against General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Respon- dent herein and also referred to as the Union, the Regional Director for Region 6 of the National Labor Relations Board, herein called the Board , issued a complaint on behalf of the General Counsel of the Board in which were alleged violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as-amended (29 U.S.C. § 151 et seq. ), herein called the Act. In its duly filed Answer the Respondent, while admitting- certain allegations of the complaint, denied the commission of any unfair labor practice. Pursuant to notice a trial was held before me in Pittsburgh, Pennsylvania, at which all parties were present, represented by counsel, and afforded full opportunity to be heard, and call witnesses, present oral argument, and file briefs. Briefs were filed by both parties on March 12, 1972. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me and, upon considera- tion of his demeanor, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. NATURE OF THE EMPLOYER'S BUSINESS Penn Erection and Rigging Company, herein called the Company, the employer of Philip Quinn, the charging party herein, is a Pennsylvania corporation with its principal office located at Turtle Creek, Pennsylvania, where it is engaged in the rigging and steel erection business. During the 12-month period immediately preced- ing the trial herein the Company performed services valued in excess of $50,000 for United States Steel ' Corporation, Jones and Laughlin Steel Corporation, and Westinghouse Corporation, each of whom the Board has found to be employers engaged in interstate commerce. Upon the foregoing conceded facts I accordingly conclude and find the Company itself to be an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 207 NLRB No. 33 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE STATUS OF THE RESPONDENT or two before." Quinn's recollection of the actual date of his return was certainly confused, to say the least. Other instances of confusion in Quinn's testimony were his account of a strike threat by the Union against the Company, and his conferences with Heckman, the union agent who was instrumental in his termination. In the former instance it was never entirely clear from the reading of Quinn's testimony whether the Company would be struck if it retained Quinn as a driver, or if it should fail to sign a contract. It is my surmise, without ample evidence upon which to draw a conclusion, that it was a combina- tion of both. Yet there is in the record a so-called "72 hour notice" of strike action sent by the Union to the Company on April 12, 3 days prior to the negotiations meeting and 5 days prior to Quinn's termination. Nor does the testimony of anyone else in the record definitely suggest that the strike was for one reason as opposed to the other. As to Quinn's conference with Heckman at the union hall Quinn repeatedly quotes Heckman as suggesting that Quinn file a grievance against the Company, but it was not until late in Quinn's testimony that it finally came out that the suggested grievance was' over the alleged failure to make Quinn's health and welfare payments to the Union and not specifically the withholding employment from him. This is just another example of compounded confusion. I observed in the witness an attitude of studied obtuseness and lack of candor not readily identifiable by precise language in the record. The sum of it all, however, convinces me that I cannot rely upon the testimony of Quinn for any fact relating to the contested allegations of the complaint, and I shall not. Thomas Sterbenz, the operations manager of the Company, was called by the General Counsel pursuant to subpoena. This witness's testimony is a classic study in evasion, and by reason out of the lack of candor which it demonstrates I cannot accept any of it as credible evidence. One of the basic conflicts in the Sterbenz testimony involved the reinstatement of Quinn as a driver after he had been deprived of employment on April 17, allegedly at the Union's request. As noted from the earlier analysis of Quinn's testimony Quinn was returning to work in June, and performed 34 -hours of work in that month, but the Union's letter "approving" his reinstatement did not issue until July 24. When Sterbenz was asked why they had put Quinn back to work a month before the Union approved of it after having originally threatened a strike if he were not fired, Sterbenz's answer took at least three different forms. First he explained that he put Quinn back to work "because we felt it was necessary and that the problem was resolved." Later in his testimony, after saying that they were "led to believe" in April that Quinn could not work for them, there was still no change in his status in early June. When asked what caused the change later in June that would prompt the reinstatement he simply avoided answering. When asked if there was communication between the Company and Union during this period his answer was: "Not to me directly." Then when asked next if General Teamsters, Chauffeurs and Helpers Local 249, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent herein, is admitted. to be and I accordingly conclude and find it to be a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Credibility Evaluation Upon my consideration of the entire record herein and my evaluation of the testimony of each of the witnesses appearing in behalf of the General Counsel I am of the firm opinion that the testimony of none of them can be relied upon to support any contested allegation in the complaint or to provide an intelligible basis for factual findings of what `actually occurred. Indeed, on numerous occasions throughout the trial of this matter I exhorted the participants to supply the record with something more tangible than was being provided by the witnesses' responses, but to-no avail. As required by law and. the holdings of the Board' I shall set forth in reasonable detail the basis for this conclusion I have reached. , Philip Quinn, the charging party herein, was called as a witness to provide in detail an account of the Union's alleged discrimination against him. His account was rife with contradiction, ,evasion, and it demonstrates the same lack of frankness that characterized the witnesses for both General Counsel and Respondent throughout the case. Illustrative of this was the confused testimony relating to his employment status. Thus he first testified that he worked for the Company as an owner-operator from January 1972 "until February. About three or four weeks was all I worked as an owner-operator." Then, testifying as to the circumstances under which the Company offered him a job as a regular driver he said that this was in February. But when asked if he was working there at the time (as he earlier had testified, as an owner-operator) he said, "No, I was not working there then." The Company's operations manager, Thomas Sterbenz, testified, "he was a full-time regular truck driver from February, 1972, and prior to that he was an owner-operator and a part-time regular driver." It appears from the record that after having been terminated on April 17, 1972, allegedly at the Union's request, Quinn was later put back to work, and with the Union's approval. Thus Quinn testified that .Operations Manager Sterbenz called him "in July 1972." "He says, `Come on back to work we have straightened it out.' So I went back to work then." Sterbenz testified, however, that Quinn returned to work at the end of June and the June payroll data in the record shows that he worked 34 hours. A letter from the Union to the Company stating that it did not object to Quinn's employment was dated July 24, and Quinn had testified that he did not return to work until the Company had received this letter, "it may have been a day i Sec. 8(b) Administrative Procedure Act (5 U.S.C. § 157(b)); Funkhous- er Mills, Division of Rubberoid Co_, 132 NLRB 245. GENERAL TEAMSTERS, CHAUFFEURS AND HELPERS LOCAL 249 247 he knew of, any communication at that time, his answer was: "no." His next attempted explanation was that he was led to believe by Harvey Taylor, the Company's president, that the strike threat did not exist late in June as it had in April. Taylor "told me that working with his attorney, he had been in the inner working . . . that he felt that it was all right to put him back to work." Then when asked for a second time, if there had been communication between Company and Union, this time he replied: "There could have been to the Company, I don't know." Finally on the same subject, when Sterbenz was pressed, the following colloquy occurred: Q. Well, what changed between the beginning of June and the end of June when you put him back to work? A. Nothing. Q. Then why did you not put him back the beginning of June? A. Because- MR. GAGNE: I do not think-the beginning of June is the question here. I think we go back to April 15. Q. Mr. -Sterbenz, I am not asking you what the question is here, I am asking you why you did not put him back to work the beginning of June? , A. Because we were threatened with a strike. Q. When-June 1? A. April15. Q. Is that the last time that you were threatened with a strike? A. The last time I was threatened with a strike, yes, April 15. As previously noted herein there was, and still is, the open question of what caused the threat of a strike, Quinn's employment, or the bargaining situation, including the Union's apparent insistence that a supplemental agreement be signed in addition to the master agreement .2 Sterbenz was at the April 15 negotiating meeting, he was completely aware of both documents under discussion, and of the threat to strike. Yet after admitting that he was present at the whole of the meeting he made a reply to a question as follows: Q. Did Mr. Heckman ever tell you at the meeting that if Mr. Quinn went to work that you would be on strike Monday? A. This I do not know. One other item further illustrates Sterbenz's lack of candor. I had occasion to ask this gentleman who was in charge of operations, including hiring, if the Company's contract with the Union, to which he had admitted familiarity, had a hiring clause. He replied that he "did not think there was," but he did not know without going through it. And again, with respect to the Union's insistence on the supplemental agreement to hire three named drivers, he was asked whether he had filed a 2 Of considerable prominence in the evidence that was taken was an alleged effort on the part of the Union to force the Company to hire three additional named drivers, all of whom were apparently present at the negotiations meeting on April 15. In some way never explicated in the record Quinn's continued employment interfered with the Union's plan to impose these three on the Company, a plan which took form in a supplement to the master contract then under the negotiation. It was the Company's unwillingness to sign this supplemental agreement, not the grievance with the Union. His answer was that he did not know. The company headquarters consists of two management officials, Sterbenz and President Taylor. Sterbenz' pro- fessed ignorance of such matters and of others of which he was questioned throughout his testimony is, to say the least, unrealistic. Upon all of the foregoing, including the instances I have used as illustrations of the condition which permeates Thomas Sterbenz' testimony, I must necessarily conclude and find him to be an unreliable witness. I therefore do not credit him. Harvey Taylor, the Company's president, also testified under subpoena and was the third and last witness called by the General Counsel. Like his associate with the Company I find him to be completely lacking in candor, evasive, and given to contradiction. Illustrations of this follow: Taylor was shown the Union's letter of July 24 in which it stated no objection to Quinn's employment. He was then asked, "What was the-reason Mr. Quinn was brought back to work earlier than that date?" His answer: "I don't know." Next, after expressing ignorance of why he reinstated Quinn in June, he was asked if he recalled Union Agent Heckman saying anything. To this he supplied an answer completely unrelated to the question and dealing with the negotiating meeting 2 months previous. Similarly, he was asked if one John P. Bursick worked for him during the April-May period. His answer: "I know a lot of Bursicks. I think that would be Mark and Bill's brother." Then he testified that he did not know whether he had worked or not. "He might have." At this point, from records that had been admitted into evidence, he identified the individual as having worked in February 1972. Because the Company had only three drivers, and two of them were Bursicks, and one of them, Mark, was the active union steward, it seems strange indeed that Taylor had such difficulty identifying their brother John, especial- ly since, within the year, he too had been one of the drivers employed by the Company. Finally, in discussing the supplemental agreement allegedly being imposed upon the Company to hire three extra men at the expense of Quinn, Taylor testified to having contacted his attorney about the agreement. He "guessed" his attorney worked it out with the attorney for the Union. It takes little expertise in human relations to conclude that Taylor knew more about his attorney's action in his behalf than he could merely "guess." The foregoing incidents illustrate an attitude which I observed in Taylor as he testified, wherein, he studiously avoided supplying any more information than he had to. I do not, for the reasons previously stated, and illustrated master agreement, that appears to have been one reason for the strike threat. The other reason was Quinn. The Company didsign the supplemen- tal agreement eventually at the meeting. No charge was ever filed against the Union for the conduct which appears from documents (i.e. the supplemental agreement. itself) to have been coercive. It is therefore not among the issues alleged in the complaint and of no independent relevance here. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, consider Taylor a reliable witness and I therefore do not credit his testimony. B. Conclusions In the. prosecution of a complaint under the Act the burden of proof is upon the General Counsel. And this burden can be established only by the preponderance of the credible testimony taken .3 Herein I have found that no witness of the General Counsel can be credited. In reaching this determination I have considered the testimo- ny of each of the three witnesses separately as well as in relation to the testimony of one another, and, in addition, I have relied upon my observation of the demeanor of each, including such hesitations, lapses in explanations, and conduct in general as each appeared as a witness. This I consider to be within the guidelines supplied me by the Board itself.4 Having thus determined that there is no credible evidence before me the burden of proof required of the General Counsel has not been met. In reaching this conclusion I am aware of no obligation to consider evidence supplied in the record by witnesses called by the Respondent Union. A respondent's posture in a trial conducted under the Act is clearly one of a party defending itself against allegations of wrongdoing made against it. Once it has been determined, as here, that such allegations are without foundation nothing remains to defend against. Respondent has no burden of going forward.5 To consider defense evidence nonetheless under such circumstances would amount to an attempt to support otherwise unsupportable allegations. Due process and fair play clearly preclude this procedure. In any event, however, my review of the entire record did include a reading of the testimony of all the witnesses. The reading of the testimony of Respondent's two witnesses together with my observation of them as they testified persuades me that they are equally as unreliable as General Counsel's three. The witnesses for both parties impressed me as studiously avoiding some hidden facet of the case, however often I reminded them, both on and off the record, that viewing the case in terms of an iceberg all that ever appeared was the tip, the mass never appearing. It is quite conceivable that this hidden mass held the key to the allegations of the complaint . But this deficiency, of course, could have been obviated from the beginning only by credible witnesses. In summary conclusion, therefore, it having been found that there is no credible evidence in the record to support the contested allegations of the complaint, I shall recom- mend that the complaint be dismissed in its entirety. Upon the basis of the foregoing findings of fact and conclusions of law with respect to the testimony herein, and upon the entire record, I hereby recommend the following: ORDER It is hereby ordered that the complaint in this matter be dismissed in its entirety. 3 Sec. 10(c) of the Act; Blue Flash Express, Inc, 109 NLRB 591 (C A. 3); Bishop and Malco, Inc, 159 NLRB 1159. 4 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 189 F.2d 362 5 American Dredging Co., 123 NLRB 139.