International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local 745 (National Electric Coil, a Division of McGraw-Edison)

National Labor Relations Board - Board Decisions

Aug 25, 1982

263 N.L.R.B. 700 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Electrical, Radio and Ma-
chine Workers, AFL-CIO, Local 745 (National
Electric Coil, a Division of McGraw-Edison)
and Wayne A. Martin. Case 9-CB-4778
August 25, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND ZIMMERMAN
On January 18, 1982, Administrative Law Judge
Martin J. Linsky issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed exceptions and an answering brief.
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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
The General Counsel contends that the Administrative Law Judge
failed to make credibility resolutions necessary to support his findings and
conclusions. We disagree. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility
unless a clear preponderance of all the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products Inc., 91
NLRB 544 (1950), enfd. 188 F.2d (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing his findings. In so con-
cluding, we note that the Administrative Law Judge failed to make ex-
plicit his credibility findings with respect to conflicting testimony of the
Charging Party and employee Freddie Jordan, on the one hand, and
union shop stewards Dean Beamer and Earl Rudder on the other. It is
clear, however, from a reading of the Decision that the Administrative
Law Judge implicitly resolved this conflict by accepting and relying on
the testimony of Beamer and Rudder. We also note, contrary to the Gen-
eral Counsel's contention, that the Administrative Law Judge's findings
were based on his consideration of the entire record, including observa-
tions of the witnesses and their demeanor.
Chairman Van de Water, in his dissent, chooses to resolve the conflict
differently. Both Martin and Jordan's testimony relating the work shifts
and dates on which the alleged threats were delivered are in clear con-
flict with established facts and documentary evidence: The Administra-
tive Law Judge closely scrutinized Martin's testimony concerning the
dates and shifts by recalling him to the stand and obtaining reaffirmation
of his earlier testimony on these details, along with assurance that he had
carefully documented the alleged incidents on his home calendar within a
day or two of their taking place. In the face of these inconsistencies, we
cannot conclude that the strict evidentiary standard for overturning
credibility resolutions established under Standard Dry Wall Products
supra, has been met and shall not embark on a needless departure from
that standard to reject findings of credibility by an Administrative Law
Judge who heard the testimony, observed witnesses' demeanor, and wit-
nessed their cross-examination.
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
CHAIRMAN VAN DE WATER, dissenting:
I find, contrary to my colleagues, that the Gen-
eral Counsel has established by a preponderance of
the evidence that union representatives Dean
Beamer and Earl Rudder threatened Wayne Martin
with a $1,000 fine if he testified on behalf of the
Employer at an arbitration hearing.
Briefly, the record reveals that in September
1979 Respondent informed its members in a news-
letter that it was concerned at the increasingly fre-
quent occasions the Employer "coerced members
to give evidence in disciplinary actions against
fellow members" and indicated that discipline
against members for such conduct could include
fines. Shortly thereafter, employees Martin and
Freddie Jordan observed employee David Woods
drinking beer inside the plant during working
hours. Woods was discharged for this offense and
subsequently filed a grievance with Respondent.
Martin and Jordan agreed to testify on behalf of
the Employer against Woods at the scheduled Oc-
tober 1980 arbitration proceeding.
On two occasions in August 1980, union stew-
ards Beamer and Rudder allegedly informed
Martin that he would be fined if he testified against
Woods at the arbitration hearing. On the first occa-
sion, Martin and Jordan testified that they were
threatened by Beamer with a $1,000 fine if they
proceeded to testify. Martin also testified that the
same threat was later made to him by Rudder.
Beamer and Rudder denied making such threats.
At the arbitration hearing, both Martin and
Jordan testified on behalf of the Employer against
Woods which resulted in the arbitration upholding
the discharge. Following the hearing, an edition of
Respondent's newsletter likened Martin and Jones
to Judas. Their names were circled in red and the
newsletter was personally handed to Martin by
union steward Elliott Jones.
In adopting the Administrative Law Judge's
highly questionable credibility findings 2 that
Martin was not threatened with a fine, my col-
leagues rely on the fact that no fine was levied and
that Martin did not work on the dates he testified
that the threats were made.
2 In his analysis section, the Administrative Law Judge states, "Since I
give no greater weight to Martin's claims that the threats were uttered
than I do to the denials of shop stewards Beamer and Rudder, as a matter
of law, I must conclude that it has not been proven that Respondent en-
gaged in unfair labor practices." This of course shows that the testimony
of the shop stewards was not given controlling weight. In view of the
documentary evidence (the union newsletters) supporting Martin's testi-
mony and the corroborating testimony by Jordan, I find the Administra-
tive Law Judge's credibility findings incredible.
263 NLRB No. 93
700
ELECTRICAL WORKERS, LOCAL 745
In my view, these findings cannot withstand
analysis. The fact that Martin was not fined in no
way supports a finding that the threats were not
made. Indeed, the filing of the charge herein might
well have discouraged Respondent from carrying
out its threats. I am equally unimpressed that
Martin may have been mistaken over the specific
dates on which the threats were made where the
hearing herein took place over 1 year later.
I am persuaded that the only plausible conclu-
sion that can be drawn is that the threats were
made. As indicated above, shortly before the dis-
pute arose Respondent circulated a newsletter
threatening members with the possibility of fines if
they supported the Employer in disciplinary action
against fellow members. Further, Respondent cir-
culated a newsletter after the arbitration proceed-
ing accusing Martin of being a Judas because he
testified against Woods. Finally, one of the threats
against Martin was corroborated by employee
Jordan.
Having concluded that the threats of a fine
against Martin for testifying on behalf of the Em-
ployer at an arbitration hearing were in fact made,
I therefore find that Respondent violated Section
8(b)(l)(A) of the Act.3
* United Steelworkers of America. AFL-CIO-CLC. Local 1981 (Major
Safe Company. Inc.), 259 NLRB 404 (1981); Amalgamated Transit Union,
Division No 825 AFL-CIO (Transport of New Jersey), 240 NLRB 1267
(1979).
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge: This
case was heard before me on October 15, 1981, in Co-
lumbus, Ohio. The charge was filed by Wayne A. Martin
on December 19, 1980. On January 29, 1981, a complaint
was issued alleging two violations of Section 8(bX)(A)
of the National Labor Relations Act, herein Act, by the
International Union of Electrical, Radio and Machine
Workers, Local 745, AFL-CIO-CLC, herein Respond-
ent.
Respondent filed an answer in which it denied that it
violated the Act.
Upon the entire record, to include consideration of
briefs filed by the General Counsel and Respondent, and
from my observations of the witnesses and their demea-
nor, I make the following:
FINDINGS OF FACT
I. JURISDICTION
National Electric Coil, a Division of McGraw-Edison,
herein called the Employer, is a Delaware corporation
with an office and place of business at in Columbus,
Ohio, where it is engaged in the manufacture of electric
coils for generators and transformers.
During the 12 months period prior to January 1981,
which is a representative period, the Employer in the
course and conduct of its business operations sold and
shipped from its Columbus, Ohio, facility products,
goods, and materials valued in excess of $50,000 directly
to points outside the State of Ohio.
The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The International Union of Electrical, Radio and Ma-
chine Workers, Local 745, AFL-CIO-CLC, is, and at all
times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Sec-
tion 8(b)(IXA) of the Act when on two occasions union
shop stewards threatened Wayne Martin, the Charging
Party and a member of Respondent Local, with a $1,000
fine if he testified on behalf of the Employer at a sched-
uled arbitration hearing.
Wayne Martin worked on the third shift at National
Electric Coil. The hours for the third shift were from 11
p.m. to 7 a.m. In October 1979, he saw David Woods
drinking beer inside the plant during working hours.
David Woods, also a member of Respondent Local, was
fired and Respondent filed a grievance protesting
Woods' discharge. Wayne Martin was asked by manage-
ment if he would be a witness for the Employer against
David Woods. He said he would be a witness. The
grievance procedure under the collective-bargaining
agreement commenced in October 1979 and eventually
an arbitration hearing was scheduled for October 1980.
Following the hearing, the arbitrator upheld the dis-
charge of David Woods based on a violation of a compa-
ny rule which prohibited drinking on the job. Wayne
Martin was a witness against David Woods as was Fred-
die Jordan, another employee and member of Respond-
ent Local.
Shortly after the arbitration hearing was held, an edi-
tion of Respondent Local's newsletter was circulated in
the plant. In this newsletter both Wayne Martin and
Freddie Jordan were likened to Judas Iscariot because
they had testified on behalf of the Company against a
fellow union member. A copy of that newsletter with the
information about Martin and Jordan circled in red was
personally handed to Martin by Elliott Jones, a union
steward on Martin's shift.
In December 1980, Martin filed a charge against the
Union with the National Labor Relations Board. The in-
vestigation of the charge led to the complaint in this
case. The complaint alleges two specific occasions in
August 1980 in which the Union is charged with violat-
ing Section 8(bXl)(A). I will treat each separately.
A. The August 7, 1980, Incident
Wayne Martin claimed that at approximately II p.m.
on August 7, 1980, Dean Beamer threatened that Martin
would be fined $1,000 by the Union if he testified on
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of the Employer at David Woods' arbitration
hearing.
Dean Beamer was one of the shop stewards on the
second shift at National Electric Coil. As noted earlier,
Wayne Martin worked on the third shift. Martin testified
that Beamer threatened him shortly before the change of
shift, when Beamer was going off work and Martin
going to work. Dean Beamer denied that he ever threat-
ened Wayne Martin or said anything about the Union
fining him if he testified for the Employer.
The General Counsel has not met his burden of proof
with respect to this alleged violation. There was evi-
dence at the hearing which tends to corroborate Wayne
Martin and there was evidence which tends to contradict
him. In light of all the evidence I must conclude that the
General Counsel has not met his burden of proving his
case by a preponderance of the evidence. Blue Flash Ex-
press, Inc., 109 NLRB 591 (1954).
The evidence which tends to corroborate Martin in
addition to the October 1980 edition of Respondent's
newsletter discussed above is as follows: (1) In Septem-
ber 1979 an issue of Respondent's newsletter reported
that the executive board of Respondent Local was
"deeply concerned about the increasingly frequent occa-
sions the company is using to coerce our members to
give evidence in disciplinary actions against fellow mem-
bers." (G.C. Exh. 3.) The newsletter article went on to
state that members may be brought up on union charges
and disciplined, to include being fined by the Local, if
they are found to engage in conduct detrimental to the
welfare or best interests of the Local. (2) Freddie Jordan
testified that he also was spoken to by Beamer at the
same time as Martin. According to Jordan, Beamer said
to him and Martin that they were going to be fined
$1,000 for testifying against David Woods. Jordan could
not remember the date when Beamer said this although
he knew that it took place shortly before the 11 p.m.
change of shift.
Beamer's denial that he ever threatened Martin is cor-
roborated by the fact that no disciplinary action was
ever taken against either Martin or Jordan although both
testified against David Woods. In addition, documentary
evidence, which I credit, shows that Beamer, who
worked the second shift from 3 p.m. to 11 p.m., checked
off work early on August 7, 1980. Beamer's timecard re-
flects that he checked in at 2:24 p.m. and checked out at
9:12 p.m. This evidence corroborates Beamer and casts
doubt on Martin's testimony. I recalled Martin to the
stand to ascertain how he fixed the date of August 7,
1980, as the date of the threat by Beamer and he testified
that only a day or two after the incident he had noted it
on a calendar he kept at home. He was sure about the
date. I find as a matter of fact that the statement or
threat was not made on August 7, 1980, and with regard
to whether it was made at all I find that the General
Counsel has failed to prove by a preponderance of the
evidence that it was ever made.
B. The August 9, 1980, Incident
Wayne Martin testified that on August 9, 1980, Earl
Rudder also threatened him when he stated to Martin
near the time of the 7 a.m. change of shift that Martin
would be fined $1,000 if he testified for the Employer at
the David Woods' arbitration hearing. Martin was cor-
roborated by the September 1979 and October 1980 edi-
tions of Respondent's newsletter, which were discussed
above. Martin testified further that there were no wit-
nesses to this threat by Earl Rudder.
Earl Rudder worked on the first or day shift and was
a shop steward on that shift. The hours for the first shift
were 7 a.m. to 3 p.m. Rudder denied that he ever threat-
ened Martin or said anything to him about being fined by
Respondent if he testified on behalf of the Employer.
Rudder was corroborated by the fact that Respondent
took no disciplinary action against Martin after he so tes-
tified. In addition, I credit the evidence which shows
that August 9, 1980, was a Saturday and no one worked
at the plant on that particular Saturday. I find as a
matter of fact that no threat was made on August 9,
1980. As to whether the statement or threat was made at
some other time I must conclude that the General Coun-
sel has not proved by a preponderance of the evidence
that it was. The testimony of Wayne Martin was suffi-
ciently contradicted and impeached such that I cannot
give it sufficient weight to sustain these unfair labor
practice charges. Martin testified in response to my ques-
tions that he fixed the date of August 9, 1980, in the
same manner that he fixed the date of August 7, 1980;
i.e., within a day or two after the threat he noted it on
his calendar.
C. Analysis
Since I give no greater weight to Martin's claims that
the threats were uttered than I do to the denials of Shop
Stewards Beamer and Rudder, as a matter of law, I must
conclude that it has not been proven that Respondent en-
gaged in unfair labor practices. I need not decide if the
shop stewards were agents of Respondent nor must I
decide whether the threats, if made, constituted unfair
labor practices under Section 8(bX)(1)(A).'
CONCLUSIONS OF LAW
1. National Electric Coil, a Division of McGraw-
Edison, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
I My analysis of Sunset Line and Twine Company, 79 NLRB 1487
(1948), and Local Union 825, International Union of Operating Engineers
AFL-CIO (Nichols Electric Company), 138 NLRB 540 (1962), would lead
me to conclude that Beamer and Rudder were agents of Respondent if I
had found that they uttered the threats to Wayne Martin. My analysis of
United Steelworkers of America. AFL-CIO-CLC Local 1981 (Major Safe
Company, Inc) 259 NLRB 404 (1981), and Amalgamated Transit Union,
Division Na 825 (Transport of New Jersey), 240 NLRB 1267 (1979), would
lead me to conclude that these threats, if uttered, would violate Sec.
8(bXIXA) of the Act.
702
ELECTRICAL WORKERS, LOCAL 745
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 2
The complaint is dismissed in its entirety.
" 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 find-
ings, 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.
703