Sartain Truck Lines, Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1973

202 N.L.R.B. 955 (N.L.R.B. 1973)

SARTAIN TRUCK LINES, INC.
Sartain Truck Lines, Inc. and Highway and Local
Motor Freight Employees , Local Union No . 667, an
affiliate of the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 26-CA-4432
. April 6, 1973 ,
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 3, 1973, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in
this proceeding . Thereafter , the Charging Party filed
exceptions and a supporting brief , and 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
briefs and has decided to affirm the rulings,
findings ,' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint herein be, and it
hereby is, dismissed in its entirety.
1 The Charging Party 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 were incorrect. Standard Dry Wall
Products, Inc., 91 NLRI; 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge duly filed on July 27, 1972, by Highway and Local
Motor Freight Employees, Local No. 667, an affiliate of
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein referred to
as the Charging Party or the Union, the General Counsel
of the National Labor Relations Board, referred to herein
as the General Counsel' and the Board respectively, by the
Regional Director for Region 26 (Memphis, Tennessee),
1 This term specifically includes the attorney appearing for the General
Counsel at the hearing.
2 Subsequent to the hearing the parties agreed, in a "Motion to Correct
955
issued his complaint dated September 14, 1972, against
Sartain Truck Lines, Inc., herein referred to as the
Respondent.
The complaint herein alleged that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Labor Management
Relations Act, 1947, as amended, herein referred to as the
Act.
Respondent duly filed its answer admitting certain
allegations of the complaint but denying the commission of
any unfair labor practices.
Pursuant to notice, a hearing thereon was held before me
in Memphis, Tennessee, on November 20, 1972. All parties
appeared at the hearing, were represented by counsel, and
were afforded full opportunity to be heard, to produce and
cross-examine witnesses, and to introduce evidence materi-
al and pertinent to the issues. At the opening of the
hearing, General Counsel moved to strike certain allega-
tions of Respondent's answer. This motion was allowed.
Also, at the commencement of the hearing, General
Counsel moved to add an allegation to his complaint that a
strike which began on November 22, 1971, was trans-
formed from an economic strike into an unfair labor
practice strike by Respondent's refusal to bargain on May
3, 1972. This'motion was allowed. At the conclusion of the
hearing, oral argument was waived. Briefs have been
received from General Counsel and Respondent on
December 18, 1972.2
_ Upon the entire record in the case and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Sartain Truck Lines, Inc., is now, and has been at all
times material herein, a corporation with an office and
terminal located in Memphis, Tennessee, where it is
engaged in the transportation of freight in interstate
commerce by truck. During the past 12 months, Respon-
dent, in the course and conduct of its business operations
at Memphis, Tennessee, derived gross revenue in excess of
$50,000 from furnishing transportation services directly
across state lines in interstate commerce.
Based upon these allegations of the complaint and the
admission of their truth in Respondent's answer, I find that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce .within the
meaning of Section 2(6) and (7) of the Act;
II. THE CHARGING PARTY
Highway and Local Motor Freight Employees,' Local
Union No. 667, an affiliate of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization admitting to
membership employees of Respondent.
Record," upon certain corrections to the transcript. These corrections are
hereby allowed.
202 NLRB No. 140
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Facts
This'case is an anomaly: A one sentence unfair labor
practice case. If that sentence was spoken, as testified to by
Union Secretary-Treasurer J. V. Pellicciotti, then Respon-
dent violated Section 8(a)(5) by conditioning further
bargaining with the Union upon the Union's dismissal of
certain other charges then pending before the Board. On
the other hand, if Respondent's attorney and bargaining
representative, Edward G. Grogan, did not utter that
sentence, which he denied having done in part.for the
reason that he "knew better than to condition [further
bargaining] on [the withdrawal of other charges]," then
Respondent committed no unfair labor practice in the
instant case.
There is, however, a credibility issue raised between
Pellicciotti The legal issue presented here is that simple.
and Grogan which is as tough as the legal issue is simple.
1. Background
The Union here had been certified as the collective-
bargaining representative for the employees in an agreed-
upon appropriate unit on August 18, 1971.
Thereafter, Respondent and the Union held approxi-
mately seven bargaining sessions between September 7,
1971, and January 21, 1972. These occurred on September
7, October 7, November 8, November 29, 1971, and
January 21, 1972.
Apparently in the belief that Respondent was "stalling"
in the negotiations, some 14 of Respondent's employees
went out on strike on November 22, 1971. ,
In 1971, the Union had filed a charge in Case
26-CA-4156 alleging violations of Section 8(a)(l), (3), and
(5) by Respondent. The Regional Office refused to issue a
complaint upon the five alleged discharges. The Union
appealed this refusal by the Regional Director to the
General Counsel. This appeal was denied by the General
Counsel on January 21, 1972. On January 23, the parties
entered into a settlement of the 8(a)(1) and (5) issues of
that charge.
Following the last negotiation meeting on November 29,
1971, Grogan, under, date of December 10, 1971, sent
Local President Augustine, who was then handling the
negotiations, a letter requesting information from him
regarding the Union's views on the effects of Phase II of
the economic control program upon the Union's proposed
economic benefits, fringe benefits, and wage increases.
On January 21, 1972, Pellicciotti' for the Union and
Grogan for the Respondent held another bargaining
session. This was Pellicciotti's first appearance at one of
these sessions as at. the prior sessions the Union had been
represented by its president, Augustine. According to
Pellicciotti, he thought that Respondent and the Union
had reached agreement at the conclusion of the January 21
meeting, subject only to ratification by the Union and by
Respondent's president. According to Grogan, although a
number of matters were settled during that session, a
number of economic issues including wages, pensions, and
health and welfare insurance still remained unsettled at the
end of the meeting.
On April 7, the Union filed other charges against the
Respondent in Case 26-CA-4313, alleging further viola-
tions of Section 8(a)(1) and (3) of the Act, specifically in
regard to 14 other alleged discharges. On April 28, the
Regional Director dismissed these charges in their entirety
with notice to the parties that any appeal from his action
must be made to the General Counsel by May 11. The
parties received this notification in the due courseof mail
on or about April 29.
After a number of vain efforts by Pellicciotti to reach
Grogan to arrange another negotiation meeting after that
of January 21, Pellicciotti finally requested the Federal
Mediation Service to arrange such a negotiation meeting.
Through a letter dated April 25, Federal Mediation
succeeded in arranging such a meeting for May 3 at 10
a.m.
2. May 3 meeting
Pellicciotti arrived on time for the 10 a.m. meeting on
May 3. About 10 o'clock, Grogan telephoned that he
would be a few minutes late. Up to this point, the
testimony of Pellicciotti and Grogan is in accord. From
this point the testimony of the two witnesses is at complete
variance.
According to the testimony of Pellicciotti, upon Gro
gan's arrival, Federal Mediator Stokes, Pellicciotti, and
Grogan went into, an office and sat down. Grogan
thereupon inquired of Pellicciotti as to what the Union was
going to do about the charges (in Case 26-CA-4313) which
the Regional Director had just dismissed. Pellicciotti
answered that he did not know because he was not familiar
with it. Thereupon, Grogan replied, "Until this was settled,
that he had nothing to talk about." Grogan thereupon rose
and departed, effectively ending the meeting after only 5 or
10 minutes.
According to the testimony of Grogan, who also relied
upon the fact that he "knew better" than to condition.
further bargaining upon the Union's action on the
dismissal, he asked Pellicciotti, "If the Union had sought
any legal advice on maximum raises and benefits that
could be granted under Phase II of the economic control
act" and specifically about the cost of the Union's pension
plan, insurance, and health and welfare. After Pellicciotti
acknowledged that he had no information on these
questions, the meeting then mutually broke up after some
30 or 45 minutes by mutual accord.
Also, according to Grogan, this conversation took place
in the absence of any representative of the Federal
Mediation Service as Stokes had merely shown them to a
room and then departed.3
B. Conclusions
So this case gets down to who said what to whom on
May3.
3 Neither side made any effort to call Federal Mediator Stokes as a
witness, so Stokes did not testify.
SARTAIN TRUCK LINES, INC. 957
It is obvious that nobody said much. It was a short
meeting.
According to Pellicciotti, he considered that the Union
and Respondent had arrived at an agreement at the
meeting of January 21, subject only to ratification by
Sartain and the Union. Yet, he admittedly called no
ratification meeting of his members, ostensibly because he
was waiting for Sartain's ratification. For a union official
with what he considered to be an agreement, Pellicciotti
proved to be a very patient man, especially with his
members on a picket line. His patience lasted from January
21 to April 25 with a few disputed, telephone calls to
Grogan interspersed. Such patience, under the circum-
stances, creates doubts regarding the alleged " agreement."
According to Pellicciotti, he really did not know what
Grogan was referring to on May3 when he asked what the
Union intended to do about an appeal of the Region's
dismissal of the 8(a)(3) charges relating to the alleged
discharges of 14 union members. If so, Pellicciotti was not
well prepared for his long-awaited meeting with Grogan.
However, he did promptly get in touch with his lawyer
about that matter after the meeting.
Still, with what would appear to be a patent unfair labor
practice occurring in the May 3 meeting, if Pellicciotti is to
be believed, the Union did not file charges thereon in the
instant case, which might well have aided its 14 recently
unemployed members, until July 27. The delay creates
doubts as to the Union's belief that Grogan had actually
conditioned further bargaining upon the dismissal of the
charges relating to the 14. This doubt is enhanced by the
fact that on May 8 Grogan consented to an extension of
the time for appealing the Regional Director's actions of
April 27.
All the above create doubts as to the accuracy of
Pellicciotti's memory as to the conversation at the meeting
of May 3.
However, on. the other hand, Grogan's• first defense
4 There are, of course, a few facts in this record which seem to confirm
the testimony of both Pellicciotti and Grogan.
5 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,
seems to be that he "knew better than to condition" further
bargaining on the Union's action regarding that appeal.
Without meaning to impugn Grogan's competence, even
the best of us do on occasion make mistakes as the courts
have found.
Furthermore, there are definite indications from the
length of time these negotiations had been going on, from
the long delays between negotiating sessions , and from the
difficulties of reaching Grogan by telephone which might
well indicate that Grogan was at least in no hurry to arrive
at any agreement with the Union. However, the Regional
Director in his wisdom did not see fit to pursue that theory
of the case and, in fact, stipulated that through January 21
Respondent had bargained in good faith with the Union
which, of course, removes these aspects from consideration
here. Regardless of the Regional Director's action, these
facts do cast some doubts upon Grogan's version of the
conversation on May 3.4
However, the pivotal point here is that the burden of
proof rested upon the General Counsel and remained with
him throughout. Hence, due to the doubts cast upon the
testimony of Pellicciotti, I have to hold that the General
Counsel has failed to sustain his burden of proof and I will,
consequently, dismiss this case in toto.
Upon the entire record in this case and from my
observation of the witnesses, I make the following:5
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent did not refuse to bargain in violation of
Section 8(a)(5) of the Act.
RECOMMENDED ORDER
I hereby order this case dismissed in toto.
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.