Royal Zenith Corporation

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Royal Zenith Corporation and Graphic Arts Interna- tional Union, AFL-CIO. Case 29-CA-8381-2 August 20, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On February 2, 1982, Administrative Law Judge William A. Gershuny issued the attached Order Granting Respondent's Motion To Dismiss in the above-entitled proceeding, finding that the General Counsel failed to establish a prima facie violation of Section 8(a)(3) and (1) of the National Labor Rela- tions Act, as amended. Thereafter, the General Counsel and the Charging Party filed requests for review and briefs in support thereof. Respondent filed a brief in opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Order in light of the requests for review, the exceptions, and the briefs, and has decided to affirm the rulings, findings, and conclusions1 of the Administrative Law Judge and to adopt his Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby adopts as its Order the Order of the Administrative Law Judge, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. 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 re- spect to 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 (1950), enfd. 188 F. 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing his findings. ORDER GRANTING RESPONDENT'S MOTION TO DISMISS A hearing was conducted in Brooklyn, New York, on June 24-25 and November 18, 1981, on complaint issued December 1, 1980. As clarified at the hearing, the com- plaint alleges (I) an unlawful discharge on August 28, 1980, under Section 8(a)(3) of the Act of Charles McEI- hinney, an electrician employed to install and repair complex printing presses at customer locations and (2) a number of 8(a)(1) violations relating to McElhinney: warning him not to engage in union activities, interrogat- ing him conerning those activities, keeping him (and other co-employees he was seeking to organize) under 263 NLRB No. 82 surveillance during a company picnic, and withholding payment of wages and travel expenses and an invitation to the company picnic because of his organizational ac- tivities. Respondent denies any violation and, through its answer and at the pretrial conference, took the position that McElhinney's discharge was for excessive travel ex- penses stemming from his residence in a rural area of Pennsylvania, distant from major airports which would permit him to perform the regular travel requirements of his job, and that McElhinney's alleged organizational ac- tivities played no part in the discharged decision. At the close of the General Counsel's case, in which the only evidence offered by either counsel for the Gen- eral Counsel or counsel for the Charging Party was the testimony of McElhinney,' Respondent orally moved to dismiss the complaint on two bases: one, that McElhin- ney's testimony should be rejected in its entirety on credibility grounds; the other, that his testimony should be stricken because of his repeated violations of my instructions not to discuss his testimony with others or to consult documents during the course of Respondent's cross-examination. 2 Based on my observation of McElhinney's demeanor during the lengthy period of his testimony and my close examination of the record evidence, I am compelled for reasons detailed herein to reject his testimony in its en- tirety as unworthly of belief and to dismiss the complaint for want of evidence sufficient to establish a prima facie case. There is thus no need to consider the alternate ground for Respondent's motion-the striking of McEI- hinney's testimony for violations of my instructions. Educated and highly articulate, and without benefit of notes or notebook, diary, or other documents while on the witness stand, McElhinney on direct examination tes- tified with clarity, precision, and certainty as to dates, places, names, events, and conversations. At the conclu- sion of direct examination, a prima facie case as to an 8(a)(3) discharge and multiple violations of Section 8(a)(1), as alleged, had been presented. Early in the proceeding, counsel for the General Counsel indicated he intended to call no other witnesses and, indeed, had no other witness statements. Later. even when it became obvious to all that cross-examina- tion had produced quite serious questions of credibility and that Respond- ent would move to dismiss on that basis, no corroborative evidence was offered, no request for additional time to gather such evidence was made, and no explanation given for the failure to produce witnesses who could corroborate much of McElhinney's testimony: e.g., the two union offi- cials who played significant roles in McElhinney's alleged organizational efforts, the many co-employees with whom McElhinney discussed union membership over a period of several months, Supervisor Pulos who be- friended McElhinney and who indicated a willingness to forgo supervi- sory status in exchange for union benefits; or the union steward at a cus- tomer's plant who orginally put McElhinney in contact with the Union's director of organizing. Because Respondent's Motion To Dismiss is dis- posed of solely on grounds of McElhinney's credibility, there is no need to consider at this time what inferences properly might be drawn from the absence of such evidence. The Charging Party's brief asserts that my instructions to the witness were unlawful and unfair. Authored by counsel who was not present during that phase of the hearing, the brief not only fails to cite a single authority in support of such a contention, but also conflicts with the courtroom position of his associate (as well as counsel for the General Counsel) that such instructions were not objectionable and that additional instructions were unnecessary. 588 ROYAL ZENITH CORPORATION In summary, McElhinney testified that he had an As- sociate's degree in electrical engineering and a B.S. degree in pre-med from New York University; that in January 1979, he was interviewed by Supervisor Fish- man for the position of electrican, with responsibilities for the wiring and repair of complex printing presses at customer locations throughout the country; that Fishman was aware of the location of McElhinney's residence and, after examining airline schedules, stated that the lo- cation would not affect McElhinney's ability to perform his job; that he commenced work with the Company in February 1979; that on or about April 18, 1980, a union steward at a customer's plant interested him in a union and, 2 weeks later, he was called by the Union's national organizing director, Warnke; that he met with Warnke in Stroudsburg, Pennsylvania, on May 18, 1980, signed an authorization card and obtained others and was told "I would have to obtain a mailing list" because Respond- ent's servicemen all worked in the field; that he solicited membership from "almost everyone," including Supervi- sor Pulos, who advised he would consider relinquishing the title in exchange for union benefits; that his organiz- ing effort continued through August 1980, when he was discharged; that for the last week in May and the first 2 weeks of June, he did not receive his salary or expense checks, despite the fact his travel vouchers were timely submitted; that Superivsor Pulos privately told him in June that the checks were not sent because Fishman had fired McElhinney, but that Pulos has "saved my job"; that the near discharge was due to McElhinney's orga- nizing activities and that care should be exercised as to who he met with and what was said; that, while he was not invited to the company picnic, he nevertheless at- tended, having planned with Warnke to make the event a "major organizing campaign"; that at the picnic he spoke about the Union with many employees, trying all the while not to attract Fishman's attention; that Fishman was always looking at him and would approach each employee after McElhinney spoke with him; that he ar- ranged for a co-employee to obtain from Respondent's office a mailing list of employees; that each was invited by letter to attend an organizational meeting with Warnke on August 2, 1980, in Flushing, New York; that only he and one other employee attended; that, while working on job in Cleveland, on August 12, 1980, with Supervisor Greenberg and others, he was questioned on several occasions about the meeting and the number of employees who had signed authorization cards; that Greenberg told him, "Everyone was aware of what I was up to" and "Fishman said he took a dim view on my activities for trying to organize the Union"; that on August 26, 1980, he was told to report to Fishman's office at company headquarters and was told by Fishman that he was being let go because travel expenses from his residence in Pennsylvania to jobsites were exhorbitant; that Fishman acknowledged knowing of the Pennsylva- nia residence, but said hiring McElhinney was a mistake which had to be corrected; that he invoked the Weingar- ten rule, which, although not understood by Fishman, was honored by him; that at another meeting on August 28, 1980, at which time McElhinney was accompanied by the Union's secretary-treasurer, he was discharged by Fishman because of his "expenses"; and that Fishman never sent him a promised letter of reference. With the commencement of cross-examination, the clarity, precision, and certainty which characterized McElhinney's direct examination evaporated. From that point on, as clearly reflected by the record as a whole, my observations and contemporaneous notes made while the witness gave the testimony, and the examples given below, McElhinney's demeanor as a witness can be de- scribed only as evasive, untrustworthy, and lacking in candor and his testimony only as contradictory, vague, and, in part, false. In sum, this cross-examination, with- out touching upon all areas of direct examination, ne- vertheles undermined the credibility of the witness to such a degree as to render, in my judgment as factfinder, the whole of his testimony unworthy of my belief. And, as noted above, no other evidence was offered by either the General Counsel or the Charging Party on which to base findings of fact relating to any substantive issue in this case. False testimony was given by the witness as to his educational background. On several occasions, he clearly and specifically stated he received not only a B.S. degree in 1970 from N.Y.U., but also a 3-year Associate's degree in electrical engineering from the same university. Later, he admitted he had but one degree, a B.S. from N.Y.U., adding that he enrolled in, but did not complete, a 2-year correspondence program in electronics at I.C.S., which he twice referred to as LaSalle College and on another occasion as Scranton University. Contradictory-and probably false-testimony was given by the witness in connection with his explanation of travel expense items charged to and reimbursed by Respondent on a number of occasions. For example, the round-trip expense of driving from his home to Philadel- phia on a Monday first was justified on the grond that it appeared to be a 1-day trip and, later, when records showed he remained overnight for several days, was ex- plained as the cost of having his wife drive him directly to the customer's plant and returning home. Not ex- plained was the pickup of a rental car at the airport and a charge for a round-trip by private vehicle between Philadelphia and his home during the same week. Contradictory-and probably false-testimony was given by the witness on June 25 in response to question- ing to determine whether and to what extent my instruc- tions to the witness at the close of the day on June 24 might have been violated. First admitting, then denying, he had reviewed his notes during the evening, the wit- ness then limited his admission to insurance forms kept by him in a bedroom dresser. He denied consulting his diary which, he said, was the only document in his brief- case relating to this proceeding. Immediately, he then ad- mitted that other papers (e.g., pleadings and his affidavit) also were in the briefcase, which he had with him at the apartment. First denying, then admitting, he had made telephone calls, including one to his wife, he stated that only personal matters and not his testimony were dis- cussed. And, finally, he felt compelled to construct an elaborate tale of his evening activities within an impossi- ble time frame: hearing adjourned at 4:35 p.m., with par- 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ties remaining briefly to discuss settlement; the witness driving to his apartment in Queens from a parking lot near Court Street in Brooklyn; showering and then making conversation with his roommate's friend while the roommate showered; and driving one or two blocks to a public telephone to make the first call between 5 and 5:30 p.m. Contradictory testimony was given by the witness concerning the date of the critical initial job interview with Fishman. On direct examination, after testifying with great detail as to a conversation in which Fishman specifically was made aware of McElhinney's residence and acknowledged that it would not impair McElhin- ney's ability to satisfy the travel requirements of the job, McElhinney testified with certainty that the interview occurred in late January and that he was hired in Febru- ary. When shown, on cross-examination, an employment application and other correspondence which clearly re- flected an initial interview on March 5; the witness, quite surprisingly, offered a number of conflicting accounts, only to admit, finally, he was mistaken as to the date; one, he had been interviewed previously; another, that the application was completed after he had been em- ployed; and yet another, that it was completed on his first day on the job. Contradictory testimony was given by the witness re- lating to Respondent's alleged unlawful withholding of pay and expense checks for three consecutive pay peri- ods. Testifying without qualification as to his failure to receive the six checks and, reciting with great detail con- versations with supervisors which would constitute an admission that such checks were in fact withheld because of McElhinney's union activity, the witness, on cross-ex- amination, admitted that only one expense check was re- ceived later than the 7-day cycle which he described as the normal time frame for the making of expense vouch- ers and the receipt of expense checks. Even his testimo- ny as to the normal payment period was demonstrated to be longer than 7 days through Respondent's reference to endorsed payment checks for periods prior to the time of McElhinney's Section 7 activities. A lack of trustworthiness was demonstrated by the witness who, on at least two occasions, knowingly vio- lated my witness instructions not to discuss testimony with others or to consult documents during cross-exami- nation. As indicated above, these examples of the witness' conduct and testimony as well as other examples clearly reflected in the record compel me to grant Respondent's motion to dismiss. ORDER It is ordered that Respondent's oral motion to dismiss, pursuant to Section 102.35(h) of the National Labor Re- lations Board's Rules and Regulations and Rule 41(b) of the Federal Rules of Civil Procedure, be, and the same hereby is, granted and that the complaint in this proceed- ing be, and the same hereby is, dismissed. 590