Warehouse Union Local No. 860

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 838 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warehouse Union Local No. 860, a/w International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Capel Klang
Companies) and Lawrence Sayre. Case 20-CB-
3848
August 30, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, MURPHY, AND
WALTHER
On March 29, 1977, Administrative Law Judge
Bernard J. Seff issued the attached Supplemental
Decision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting 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 Supplemental Decision in light of the
exceptions and brief and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive 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, and it hereby is,
dismissed in its entirety.
MEMBER WALTHER, concurring:
I agree with my colleagues that the complaint
herein should be dismissed in its entirety. As noted in
my dissenting opinion in the previously issued order
remanding this proceeding to the Administrative
Law Judge,2 I find it unnecessary to reach the
question of Chessari's credibility. For, as fully
explained in the previous dissent, if Chessari were to
have been fully credited, the elements of a violation
would still not be present in this proceeding.
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
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 (C.A. 3, 1951). In finding that
Respondent did not request Sayre's discharge, the Administrative Law
Judge specifically discredited Foreman Chessari's testimony that Respon-
dent President Aguirre made such a request. The Administrative Law Judge
also expressly credited Aguirre's denial that he requested Sayre's discharge.
He based his credibility resolutions both on the demeanor of the witnesses
and the reasonable probabilities of the situation. In addition, he drew an
231 NLRB No. 142
adverse inference from the General Counsel's failure to call as his witness
Supervisor Cal Parrott who made the ultimate decision to terminate Sayre.
Whether we might have reached a contrary conclusion as to the
probabilities of the situation if we were assessing the facts de novo is
irrelevant, for we find no basis for reversing the Administrative Law Judge's
credibility findings based on his observation of the demeanor of the
witnesses.
2 228 NLRB 364 (1977).
SUPPLEMENTAL dECISION
BERNARD J. SEFF, Administrative Law Judge: The Board
ordered on February 22, 1977, that the Decision in the
instant case be remanded to the Administrative Law Judge
for the purpose of reevaluating the evidence and making
credibility resolutions concerning the telephone conversa-
tion between the Union's president, Henry Aguirre, and
the Company's foreman, John Chessari. Additionally, I
discredited Sayre's testimony that he was told by Foreman
Parrott that the Company had to lay Sayre off so he could
get another job. The Board noted that Sayre's testimony of
this conversation may be affected by the testimony of
Chessari and what disposition I make of that testimony.
Chessari testified that he received a phone call from
Aguirre on March 11, 1976, the day before the layoff, in the
course of which Aguirre asked the company supervisor to
put Sayre on a regular journeyman's rate of $6 per hour
instead of the apprentice rate of $3 per hour. The record
indicates that Aguirre made a personal plea on behalf of
Sayre because he was in dire circumstances and desperate
to secure the higher rate.
The Company allegedly responded to the Union's
request by explaining there was no way this could be done
since all such jobs were taken and work was slow.
According to Chessari, Aguirre then told him to lay off
Sayre and send him back to the union hall where Aguirre
would try to get him a better paying job. Aguirre testified
flatly that he never told the Company to lay off or
terminate Sayre. There is a clear conflict in the testimony
between Aguirre and Chessari as to whether Aguirre told
the Company to lay off Sayre. Aguirre testified strongly
denying any such statement.
Credibility of Witnesses
I was not impressed with the demeanor of Chessari while
he was on the witness stand. He was vague in many of his
answers and he gave his testimony in a glib fashion. I do
not credit him.
On the other hand, I credit the testimony of Aguirre, who
impressed me as being a forthright and truthful witness. I
accept as true Aguirre's testimony that he did not tell
Chessari to lay off Sayre. It is not disputed that Aguirre
told the Company to send Sayre back to the union hall
where he would try to get him a better paying job.
Whatever the exact words used by Chessari and Aguirre,
the internal evidence in the record demonstrates that the
Union made a sincere effort to help Sayre. The record is
replete with statements made to Sayre by both the union
dispatcher, Patterson, and Aguirre advising Sayre to hold
on to his apprentice job temporarily until a better job
opened up for him. Aguirre told Sayre that "a half a loaf is
better than none." From the evidence in the record it seems
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WAREHOUSE UNION LOCAL 860
unlikely that under the circumstances the Union would
seek Sayre's layoff.
Additional Findings Concerning the Layoff
The Company's general manager, James Christensen,
testified that Chessari came into his office and said the
Union had called and Sayre was not happy with the wages
he was making at Capel Klang.
Christensen testified as follows:
So I called Cal Parrott and told him about it and I said
we cannot pay a new man $6 an hour and that's all we
can do. Cal said that we have to pay him $6 or let him
go. And I said that is your decision to make, but we're
not going to pay him $6 an hour.
The decision to let Sayre go was made by Parrott. It should
be noted that Parrott was not called as a witness although
he made the final decision and ostensibly was peculiarly in
possession of the facts. From this omission I draw the
inference that if he had been called his testimony would
have been adverse to the General Counsel's case.
I further find that Sayre's testimony that he was told by
Parrott that the Company had to lay him off so he could
return to the union hall to get another job is illogical and
not supported by the record. The fact is there were no other
jobs available at the time the incidents involved in this
proceeding took place. I discredited his testimony because
of his demeanor on the witness stand and the further fact
that he was obviously angry at the Union. His testimony
was not affected by the testimony of Chessari.
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,
conclusions, and recommended Order herein shall. as provided in Sec.
Concluding Findings
The substantial evidence on the record considered as a
whole makes it clear that it was the decision of the
Company to lay off Sayre. This decision was not prompted
by the Union. Chessari testified that he had nothing to do
with the layoff. General Manager Christensen left the final
decision to Parrott, whose usual duties included the right to
hire and fire employees.
It should also be pointed out that Sayre testified that he
did not want to continue working as an apprentice at $3
per hour.
CONCLUSIONS OF LAW
The General Counsel did not sustain his burden of
proving that Sayre was laid off at the request of the Union
for reasons violative of the Act.
I find and conclude that the Union was not guilty of any
unfair labor practices affecting commerce within the
meaning of Section 8(b)(1) and (2) and Section 2(6) and (7)
of the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(b) of the Act, I hereby issue the following recommend-
ed:
ORDER'
It is ordered that the complaint herein be, and the same
hereby is, dismissed in its entirety.
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.
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