Roto Rooter

ROTO ROOTER 1025 F. E. Wray, Inc. d/b/a Roto Rooter and Warehouse, Mail Order and Retail Employees and Whole- sale Liquor Salespersons, Local 853, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 32-CA-6880 and 32-CA-6943 May 18, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On August /1, 1987, Administrativ Law Judge James M. Kennedy issued the attached supplemen- tal decision.' The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings,2 findings, 3 and conclusions and to adopt the recom- mended Order as modified. The Board had remanded this proceeding at 283 NLRB 771 (1987). 2 We affirm the judge's denial of the Respondent's Motion to Disquali- fy Administrative Law Judge filed with him 2 days before the issuance of his supplemental decision Further, we deny the Respondent's Motion for Disqualification of Administrative Law Judge and for Order Directing Rehearing filed with the Board The Respondent asserts that at the hear- ing the judge, by comments both on and off the record, displayed bias and a "clear" disposition to rule in favor of Martinez regardless of any credibility resolution It was incumbent on counsel for the Respondent, however, immediately to request that any improper Comment allegedly made off the record be repeated on the record, to make timely objections to the judge's remarks allegedly displaying bias and predisposition, and to move that the judge disqualify himself. Counsel for the Respondent did not do so. The motions alleging improptiety and requesting disqualifica- tion were not filed until after the judge issued his decision on June 9, 1986. Further, by agreement of the parties, the supplemental decision was prepared without reopening the record. Under these circumstances, we find that the Respondent's contention has not been timely 'raised. Sec. 102 37, Rules and Regulations of the National Labor Relations Board. Moreover, on careful examination of the judge's decision and the entire record in this proceeding, we are satisfied that the Respondent was ac- corded a full and fair hearing. We note especially that the judge's expres- sion of opinion regarding the ultimate merits of the case occurred after all evidence had been presented and in the context of suggesting the pos- sibility of settlement 3 The Respondent has excepted to some of the judge's credibility find- ings. 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), enftl 188 F 2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In finding that employee Martinez did not engage in any strike miscon- duct the judge credited Martmez' testimony over that of employee Penney He based his credibility resolution both on the demeanor of the two witnesses and the reasonable probabilities of the situation Whether we might reach a contrary conclusion as to the probabilities of the situa- tion if we were assessing the facts de novo is irrelevant, for we find no basis for reversing the judge's credibility findings to the extent they are based on his observation of the demeanor of the witnesses In its exceptions to the judge's supplemental decision, the Respondent argues that Martinez was not engaged in any protected activity during ORDER The National Labor Relations Board orders that the Respondent, F. E. Wray, Inc. d/b/a Roto Rooter, San Leandro, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to reinstate employees because they engaged in a strike protected by Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Steve Martinez immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with- out prejudice to his seniority or any other rights or privileges previously enjoyed, discharging, if neces- sary, any employee hired since the discriminatory refusal to reinstate Martinez in order to make room for him; and make him whole for any loss of earn- ings and other benefits suffered as a result of the discrimination against him, with backpay and inter- est to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded.4 (b) Remove from its files any references to the unlawful refusal to reinstate Martinez and notify him in writing that this has been done and that this matter will not be used against him in any way. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. his encounter with Penney and thus the General Counsel failed to make a prima facie case under Wright Line, 251 NLRB 1083 (1980). However, this argument is completely vitiated by the parties' stipulation in the original proceeding that the Respondent would have reinstated Martinez if it had not believed that he had engaged in misconduct during a pro- tected strike. See the mtroductory paragraph of sec. III in the judge's de- cision, 283 NLRB at 774. See also NLRB v. Fleetwood Trader Co., 389 U.S. 375 (1967) (burden is on employer to justify denial of reinstatement to a striker). We correct factual errors made by the judge. The record shows that Penney's previous period of employment had ended 3 months before the strike, not "a year or two before," and that Martinez testified, in agree- ment with Penney, that he was driving his pickup truck, not his car. These errors do not affect our disposition of this case. 4 283 NLRB 1173 (1987). Interest on and after January 1, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior tei January I, 1987 (the effective date of the 1986 amendment to 26 U.S C § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977) 288 NLRB No. 112 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (d) Post at its facility in San Leandro, California, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Re- gional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to reinstate employees who have engaged in a lawful strike protected by Sec- tion 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Steve Martinez immediate and full reinstatement to his former job or, if that job no longer exists, to a- substantially equivalent job, without prejudice to his seniority or any other rights or privileges previously enjoyed, discharg- ing, if necessary, any employee hired to replace Martinez since our discriminatory refusal to rein- state him; WE WILL make him whole, with interest, for lost earnings and other benefits suffered as a result of our discrimination against him WE WILL remove from our personnel files and all other records any reference to our refusal to re- instate Steven Martinez and WE WILL notify him in writing that we have done so and that this matter will not be used against him in any way. F. E. WRAY, INC. D/B/A ROTO ROOTER SUPPLEMENTAL DECISION JAMES M. KENNEDY, Administrative Law Judge. On June 9, 1986, I issued my original decision in this matter. Thereafter, on April 29, 1987, the Board issued its Deci- sion and Order Remanding (283 NLRB 771). In its Order, the Board remanded the matter to me for the pur- pose of making credibility resolutions on all testimony concerning the alleged strike misconduct of employee Steve Martinez and for recommendations whether his conduct justified, under the standard of Clear Pine Mouldings, 268 NLRB 1044 (1984), the denial of his right as an economic striker to return to work. On May 7, 1987, I wrote the parties a letter advising them that it was my intent to review the record and the briefs previously filed and to issue my supplemental deci- sion pursuant to the Board's directive without reopening the record. No party opposed that procedure. However, shortly thereafter, I was advised, later confirmed by a letter from Respondent's counsel, that the parties had en- tered into settlement discussions with respect to the re- manded portion of the case. They requested that my de- cision be delayed for 6 weeks. Eventually, after addition- al time had passed, a representative of the General Coun- sel advised by letter dated August 10, 1987, that the par- ties had been unable to reach a settlement. He requested that I issue a supplemental decision. Accordingly, I regard the earlier agreement to delay my decision as having come to an end and issue this supplemental deci- sion.1 Based on the testimony, the arguments and the record as a whole, I make the following additional FINDINGS OF FACT As noted in my initial decision, Respondent asserts that striker Steve Martinez engaged in misconduct in the early afternoon of November 13 or 14, 1984, on Hesperi- an Boulevard in San Leandro, California. That street is a busy, six-lane divided thoroughfare. Nonstriker Steve Penney was driving a Roto Rooter van which was stopped at a stoplight in a left-turn lane. He was approximately 15 car lengths from the intersec- 1 By motion dated August 14, 1987, but not received until August 19, Respondent has asked me to disqualify myself on the ground I had evi- denced a predisposition to find against it The remarks that I made and that Respondent has used to support its motion were made after all the evidence had been presented and were also aimed at assisting the parties with respect to their briefs and possible settlement. See , Division of Judges Manual, sec. 17004 Accordingly, the motion lacks merit and is denied. ROTO ROOTER 1027 tion; traffic was severely backed up. He testified that he observed Martinez attempt to force his pickup truck in front of the van, apparently to stop its progress. Simulta- neously, he says, Martinez shouted loudly that he was going to "kick [Penney's] ass." Penney said Martinez then spit at the van and threw ice at it from a paper cup. Even so, according to Penney, Martinez' vehicle never actually blocked his progress and Martinez' truck veered only slightly into Penney's lane when the encounter began. As the traffic began to move forward, Martinez' vehicle proceeded forward in its own lane but then shift- ed partly back into Penney's lane. At no time did Pen- ney's vehicle ever exceed 5 miles per hour. As I noted previously, Penney conceded in his testimony that his van was never in any real danger and Martinez never ac- tually blocked him from proceeding. His concession on this point was quite reluctant. I'enney's final version re- garding Martinez' actual driving suggests that Martinez drove no differently than drivers do who are unsuccess- fully attempting to change lanes in a traffic jam. As I found in my initial decision, Martinez denied the entire matter. He testified that he was totally unaware of the entire incident until it was brought to his attention by an NLRB field agent during the course of her investiga- tion. When prompted by her questioning, he remembered seeing a Roto Rooter truck on Hesperian Boulevard one day and remarking about it to his passenger, Pat Ryan, described as a personal friend. Martinez testified that al- though he recognized the truck as one that belonged to this particular Roto Rooter franchise, he did not notice whether the driver was wearing a uniform or even who the driver was. It was not until the NLRB investigator told Martinez that the driver was Penney that he had any knowledge about the driver's identity. It is true, however, that he and Penney had formerly worked as servicemen for Roto Rooter and they knew each other. Penney, however, had left the Company a year or two before. In any event, Martinez testified that after he no- ticed the Roto Rooter truck he may have said something to his passenger, but not loudly enough to have been heard outside his vehicle. He denied threatening to "kick Penney's ass," denied throwing ice, denied spitting, and denied edging his vehicle into Penney's lane. He said that when the light turned green, he simply proceeded down Hesperian Boulevard and he lost track of the Roto Rooter truck. Contrary to Penney, he said he was driv- ing a car, not a pickup truck. Credibility Resolutions and Analysis In my initial decision I assumed for the sake of analy- sis that Penney's testimony should be relied on, principal- ly because I did not believe his testimony, if credited, would be of sufficient weight to constitute a defense. (Cf. MGM Grand Hotel, 275 NLRB 1015 (1985) (slow moving tailgating incident).) Simultaneously, however, I observed that Martinez' testimony was in some respects the more credible of the two. I continue to hold that view. First, as I observed Penney testify, I found his de- meanor to be less than fully convincing. Indeed, at one point, Respondent attempted to bolster his testimony through the use of a prior consistent statement. Some testimony of that nature occurred before the appropriate objection was made. Second, I note that Penney has a job-related interest in the outcome of the case. The strike here was an economic one, and Respondent was attempt- ing to operate despite it. To continue its business, it had hired replacements such as Penney. There was at least some likelihood that strike replacements would lose their jobs to returning strikers when the strike ended. This was most likely if the replacements were temporary. It was true to a lesser likelihood if the replacements were permanent, for a settlement might well have contained a striker-recall agreement that could have resulted in their ouster. One way Penney could try to guarantee himself a job was to give testimony that would prevent a striker, such as Martinez, from reobtaining his job at the end of the strike. Thus, he has a pecuniary interest in giving the testimony he did. Third, Penney appeared glib, even cocky. He appeared excessively self-assured. Indeed, it seemed to me that he was more interested in putting on an act for me than in accurately describing the facts. Fourth, Martinez' demeanor and testimony were con- sistent with that of an individual who had little knowl- edge of the incident and was puzzled by it. His recollec- tion appears hazy, not because he was trying to obfus- cate, but because the incident was so ordinary that it made no permanent impression. Fifth, it seems highly un- likely that he would involve a personal friend in a traffic incident of the nature described by Penney. It was a chance encounter while driving his personal car, and the probability that he would risk damaging it and injuring his friend in a deliberate collision seems remote. He testi- fied in a matter-of-fact manner. I found him to be a very impressive witness. I recognize that Martinez, too, has a pecuniary interest, but based on his demeanor I find that he was not influenced by that interest to the same degree as Penney. Thus, of the two versions, I find Martinez' testimony to be the more credible. Relying on his testimony, I con- clude that Martinez did not engage in any form of strike misconduct. Specifically, I find that he did not say any- thing to Penney, did not spit at Penney's vehicle, did not throw ice at it, and did not attempt to cut off its passage. He engaged in no activity that would have caused a risk of any kind to Penney. Thus, I conclude, as I did previously, that Respondent denied reinstatement to Martinez at the end of the strike on the single basis that he had engaged in the strike. Re- spondent's denial of reinstatement in that circumstance constitutes a violation of Section 8(a)(3) and (1) of the Act. The considerations of Clear Pine Mouldings, there- fore, do not apply. Recommendation Based on the foregoing findings of fact and analysis I recommend that the Board adopt the recommended remedy that I initially issued in favor of Martinez. The only change that I would recommend is that interest on backpay, if any, - should be in accordance with the Board's recent decision in New Horizons for the Retarded, 283 NLRB 1173 (1987). In all other respects, except for the 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the reference to Lionel Myles, the order would remain the same. Thus the previous recommended remedial Order should be modified. [Recommended Order omitted from publication.]