Petition for Writ of Certiorari — John Conlee Enterprises, Inc. v. National Labor Relations Board

\ Supreme Court, u.$

\ FRY. E D

J

9714983 yar9 =199

No.

Gere CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1997

JOHN CONLEE ENTERPRISES, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

On PETITION For A Writ OF CERTIORARI

To Tue UNrrep States Court OF APPEALS

For Tue SrxtH Circuit

PETITION FOR WRIT OF CERTIORARI

Puitip K. Lyon

COUNSEL OF RECORD

Jack, Lyon & Jongs, P.A.

11 Music Crrc_e SouTH

SurrE 202

NASHVILLE, TN 37203

(615) 259-4664

COUNSEL FOR PETITIONER

BECKER GALLAGHER LEGAL PUBLISHING, INC., CINCINNATI, OHIO 800-890-5001

QUESTIONS PRESENTED FOR REVIEW

The Administrative Law Judge’s credibility

determinations have, as a matter of law, so far

departed from the accepted and usual course of

administrative judicial proceedings that this court’s

supervisory powers are required in order to preserve

petitioner’s due process rights.

Whether the Sixth Circuit Court of Appeals erred

when it held that the issue of the Administrative Law

Judge’s bias was not properly before it because

Petitioner did not raise the issue before the National

Labor Relations Board.

TABLE OF CONTENTS

QUESTIONS PRESENTED

ey rr a, eee i

TAREE GP CEOS 6 6 hee eww ada ceeneces ii

TABLE OF AUTHORITIES ..............0.20. iil

PETTIBON FOR CREAM 2. occ ccc reccccce 1

CPP DE. os gb oe eee eae a co 1

FUGREDEGEE 4 +o és sv cee eee eee os 1

CONSTITUTIONAL &

STATUTORY PROVISIONS ............. 1

STATEMENT GF THE CASE ......cscccccees 3

ARGUMENT:

I. THE ADMINISTRATIVE LAW

JUDGE’S CREDIBILITY

DETERMINATIONS HAVE SO FAR

DEPARTED FROM THE

ACCEPTED AND USUAL COURSE

OF ADMINISTRATIVE JUDICIAL

PROCEEDINGS THAT THIS

COURT’S SUPERVISORY POWERS

ARE REQUIRED IN ORDER TO

PRESERVE PETITIONER’S DUE

PROCESS RIGHTS ..:........... 5

ii

II. THE SIXTH CIRCUIT COURT OF

APPEALS ERRED WHEN IT HELD

THAT THE ISSUE OF THE

ADMINISTRATIVE LAW JUDGE'S

BIAS WAS NOT PROPERLY

BEFORE IT BECAUSE PETITIONER

DID NOT RAISE THE ISSUE

BEFORE THE NLRB ............-. 13

ee ae ae 14

APPENDICES:

A. NLRB v. John Conlee Enterprises, Inc.,

1997 U.S. App. LEXIS 23176 ...... Al

B. NLRB v. John Conlee Enterprises, Inc.,

Denial of Petition for Rehearing

PPT er erer re sr Ea All

Cc. John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995) ........ Al3

D. NLRB v. John Conlee Enterprises, Inc.,

Petition for Rehearing En Banc ..... A37

E. Study of ALJ Itkin’s Witness

Credibility Evaluations, 1973-1995 .. A48

F, Statistical Analysis Table, 1973-1995 . A102

G. NLRB Case Handling Manual,

eee ee A105

ili

H. NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047 ....... A109

TABLE OF AUTHORITIES

Supreme Court Decisions

Castenada v. Partida,

430 U.S. 482, 97 S.Ct. 1272,

em FF fs. , naar 8

Hazelwood School District v. U.S..,

433 U.S. 299, 97 S.Ct. 2736,

SS Ae, ee ee ck aw eee een 8

In re Murchison,

349 U.S. 133, 75 S.Ct. 623,

ae es 6 ba 4 0 eee ee re 12

Johnson v. Mississippi,

403 U.S. 212, 91 S.Ct. 1778,

we 7 ao eee rer: oe ee 12

Marshall v. Jerrico, Inc.,

446 U.S. 238, 100 S.Ct. 1610,

ee > £ ¢). Bee ere 12

Schweiker v. McClure,

456 U.S. 188, 102 S.Ct. 1665,

e © 3, Sree weer ns Boe 5

Withrow v. Larkin,

421 U.S. 35, 95 S.Ct. 1456,

Sie. ae ee eee. x ab en eee eee 6, 10

Court of Appeals Decisions

Be-Lo v. NLRB,

126 F.3d 268 (4th Cir. 1997) ............. )

Cinderella Career and Finishing Schools, Inc. v. FTC,

Bw fF fie: Ab re 6

Hepperle v. Jonhston,

S90 Fae Gow CRG. IFT) 2 cece ce seven 6

In re Cargill,

66 F.3d 1256 (1st Cir. 1995),

cert. denied 116 S.Ct. 1545, 134

mF lL ee ee ee 6

NLRB vy. Ford Motor Co.,

114 F.2d 905 (6th Cir. 1940),

cert. denied 312 U.S. 689,

61 S.Ct. 621, 85 L.Ed. 1126 (1941) ........ 12

NLRB v. Phelps,

136 F.2d 562 (Sth Cir. 1943) ......... 5, 6, 12

Partington v. Gedan,

880 F.2d 116 (9th Cir. 1989),

vacated on other grounds, 497 U.S. 1020,

110 S.Ct. 3265, 111 L.Ed. 2d 776 (1990)... . 6, 12

U.S. v. Cowden,

545 F.2d 257, 265 (1st Cir. 1976),

cert. denied 430 U.S. 909, 97 S.Ct. 1181,

Le. OU Se CRU ER as hoe ere ee ees 6

vi

U.S. v. Winston,

613 F.2d 221, 222 (9th Cir. 1980) ...------ 6

U.S. v. Wolfson,

558 F.2d 59 (2nd Cir. 1977) ..--- +++ eee? 6

NLRB Decisions

Getman Corp.,

1996 N.L.R.B. 180 (1996) ..--- +s sere 10

LC.C. Air Services Corp..,

1995 N.L.R.B. 324 (1995) ..--- essere 10

John Conlee Enterprises,

317 N.L.R.B. 1082 (1995),

enforced 1997 U.S. App. LEXIS 23176 ...... Y

Joy Recovery Technology Corp.,

320 NLRB 45 (1995),

enforced 1998 U.S. App. LEXIS 1047... 7, 8, 11

T&J Container Systems,

316 N.L.R.B. 771 (1995) ..---+-ee creer’ 10

Wimpey Minerals U.S.A.. Inc.,

316 N.L.R.B. 803 (1995) ..--- see scree 10

Other Referenced Materials

National labor Relations Board,

Casehandling Manual (Part aa 11

National Labor Relations Board,

Manual: Division of Judges (29B4) on noe ol 2)

vii

ee

John Conlee Enterprises, Inc. respectfully petitions

this Court to issue a Writ of Certiorari to review the judgment

and opinion of the United States Court of Appeals for the

Sixth Circuit, entered in the above-entitled proceeding

December 8, 1997.

OPINIONS BELOW

The Judgment and Opinion of the Court of Appeals for

the Sixth Circuit is not published but is reproduced at App. A,

Al. The Judgment and Opinion of the Court of Appeals for

the Sixth Circuit denying rehearing en banc is not published

but is reproduced at App. B, All. The Judgment and Opinion

of the National Labor Relation Board Panel is reported at 317

N.L.R.B. 1082 and is reproduced at App. C, Al3.

JURISDICTION

The judgment of the United States Court of Appeals

was rendered August 28, 1997. A timely petition for

Rehearing en banc was filed by Petitioner. Such Petition for

Rehearing was denied on December 8, 1997. The jurisdiction

of this Court is invoked under the provisions of 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fifth Amendment Due Process Clause:

No person shall. . . be deprived of life, liberty, or

property, without due process of law.

29 U.S.C. § 160/c):

Reduction of testimony to writing; findings and orders

of Board.

Thereafter, in its discretion, the Board upon

notice may take further testimony or hear

argument. If upon the preponderance of the

testimony taken the Board shall be of the

opinion that any person named in the

complaint has engaged in or is engaging in any

such unfair labor practice, then the Board shall

state its findings of fact and shall issue and

cause to be served on such person an order

requiring such person to cease and desist from

such unfair labor practice. . .

29 U.S.C. § 160(f):

Review of final order of Board on petition to court.

Any person aggrieved by a final order of the

Board granting or denying in whole or in part

the relief sought may obtain a review of such

order in any court of appeals of the United

States in the circuit wherein the unfair labor

practice in question was alleged to have been

engaged in or wherein such person resides or

transacts business, or in the United States

Court of Appeals for the District of

Columbia...

STATEMENT OF THE CASE

Petitioner John Conlee Enterprises, Inc. promotes,

manages, and sells entertainment services provided by Mr.

John Conlee, a country music singer, and his band. Petitioner

is a Tennessee corporation located in Nashville, Tennessee,

and Mr. Conlee performs throughout the United States.

Petitioner’s president is Mr. Conlee, and Mr. Steve Sechler

serves as Petitioner’s band leader and road manager.

William Hall, Lonnie Tate, Rex Wiseman, and Lee

Ann Wiseman are musicians that were employed by

Petitioner. Each are members of the American Federation of

Musicians (“AFM”), Local 257, as are Conlee and Sechler.

However, Petitioner has no bargaining or contractual

relationship with the AFM. Upon the AFM’s advice, Hall,

Tate and the Wisemans filed a grievance over compensation

issues against Petitioner.

After the employees filed their grievance, Conlee and

Sechler discovered that all of the musicians’ equipment and

personal items had been removed from Conlee’s touring bus.

Thus, Conlee believed that the employees quit and did not

intend to return to work. He then issued a letter to each

employee, stating his belief that the musicians had terminated

their employment based on the removal of their things from

the tour bus. Hall, Tate, and the Wisemans then told Conlee

that they had not intended to terminate their employment, but

Conlee informed the four that he had hired permanent

replacements.

On August 16, 1994, the NLRB filed an unfair labor

practice charge against Petitioner, and a complaint issued on

September 29, 1994. On January 11, 1995, a hearing was

held before ALJ Frank H. Itkin. In his written Opinion,

3

Judge Itkin credited all of the Board’s witnesses and

discredited all of Petitioner’s witnesses, and ruled that

Petitioner had violated sections 8(a)(1) and (3) of the National

Labor Relations Act. Petitioner filed exceptions to Judge

Itkin’s credibility determinations, asserting that the ALJ was

biased. Nevertheless, the NLRB affirmed Judge Itkin’s

decision and invoked the jurisdiction of the Sixth Circuit

Court of Appeals pursuant to 29 U.S.C. § 160(f). Petitioner

then introduced statistical evidence indicating that from 1973

to 1995, ALJ Itkin had credited 93% of all NLRB witnesses

in CA or CA/RC cases while crediting only 21% of

“employer” witnesses, making the Judge 4.6 times more

likely to credit a NLRB witness than an employer witness.

See App. 28. The Sixth Circuit Court of Appeals rejected the

evidence and ordered enforcement of the NLRB’s decision.

Petitioner then filed a Petition for Rehearing and further

offered the results of a statistical regression analysis of 113

cases that clearly shows that ALJ Itkin is biased in favor of

the NLRB. However, the Sixth Circuit denied the Petition for

Rehearing and refused to consider this analysis, holding that

the issue of ALJ Itkin’s bias was not properly before it

because Petitioner did not raise the issue before the NLRB.

In enforcing the ALJ’s decision, the Sixth Circuit

ignored the evidence of Judge Itkin’s bias and in effect

sanctioned a substantial departure from the accepted and usual

course of judicial proceedings. Accordingly, as is more fully

set forth below, this Court should grant the Petition for

Certiorari.

ARGUMENT

I. THE ADMINISTRATIVE LAW JUDGE’S

CREDIBILITY DETERMINATIONS HAVE, AS A

MATTER OF LAW, SO FAR DEPARTED FROM

THE ACCEPTED AND USUAL COURSE OF

ADMINISTRATIVE JUDICIAL PROCEEDINGS

THAT THIS COURT’S SUPERVISORY POWERS

ARE REQUIRED IN ORDER TO PRESERVE

PETITIONER’S DUE PROCESS RIGHTS.

- The first issue before this Court involves the bias of an

administrative law judge. Administrative law judges are

required, as are Article [II judges, to remain impartial and

unbiased during all proceedings before them. Schweiker v.

McClure, 456 U.S. 188, 195, 102 S.Ct. 1665, L.Ed. 2d 1

(1982). In fact, ALJ’s are held to a higher standard of

impartiality than are Article III judges. See NLRB v. Phelps,

136 F.2d 562, 563 (Sth Cir. 1943): 7

The rigidity of the requirement that the trier be

impartial and unconcerned in the result applies

more strictly to an administrative adjudication

where many of the safeguards which have been

thrown around court proceedings have, in the

interest of expedition and a supposed

administrative efficiency been relaxed.

Accordingly, the actions of ALJ’s warrant closer scrutiny in

order to prevent judicial bias.

The National Labor Relations Act authorizes the

NLRB to enter an order based on unfair labor allegations after

a hearing has been conducted. 29 U.S.C. §160(c). This

hearing- is meant to be conducted by a tribunal without

5

prejudice and “imbued with the desire to accord to the parties

ion.” Phelps, 136 F.2d at 564. (emphasis

added). If the respondent believes that the ALJ did not

consider the witnesses and arguments of both parties equally,

che can look to the federal courts of appeals for relief. See 29

U.S.C. §160(f). Further, federal courts are responsible for

making certain that “the image of the administrative process

is not transformed from a Rubens to a Modigliani.”

Cinderella Career and Finishing Schools, Inc. v. FTC, 425

F.2d 583, 590 (D.C. Cir. 1970).

In order to succeed on a claim of judicial bias, a party

must “overcome a presumption of honesty and integrity” and

provide evidence that a “risk of actual bias or prejudgment”

is present. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct.

1456, 43 L.Ed. 2d 712 (1975). A party may do so by

demonstrating either that the judge has predetermined an issue

or reasonably appears to have predetermined an issue.

Partington v. Gedan, 880 F.2d 116, 135 (9th Cir. 1989),

(Reinhardt, J. concurring and dissenting), vacated on other

grounds, 497 U.S. 1020, 110 S.Ct. 3265, 111 L.Ed. 2d 776

(1990). The standard applied by several circuits addressing

the issue is whether the facts surrounding the charge of bias

would create a reasonable doubt of the judge’s impartiality in

the mind of a reasonable man. See U.S. v. Cowden, 545 F.2d

257, 265 (1st Cir. 1976), cert. denied 430 U.S. 909, 97 S.Ct.

1181, L.Ed. 2d 585 (1977). See also U.S. v. Wolfson, 558

F.2d 59, 64 (2nd Cir. 1977); Hepperle v. Jonhston, 590 F.2d

609, 614 (Sth Cir. 1979); U.S. v. Winston, 613 F.2d 221, 222

(9th Cir. 1980). In applying this test, @ judge would be

disqualified even if there is no actual bias on the judge’s part.

In re Cargill, Inc., 66 F.3d 1256, 1260 (1st Cir. 1995), cert.

denied 116 S.Ct. 1545, 134 L.Ed. 2d 648 (1996).

Petitioner contends that the Administrative Law Judge

6

EE ————— — <<“.

(“ALJ”) who presided over Petitioner’s initial hearing was

biased, thus depriving Petitioner of its Due Process rights.

To prove that the ALJ, (Judge Frank Itkin) was biased,

Petitioner offered significant statistical evidence

demonstrating that Judge Itkin has credited an astonishingly

high number of General Counsel witnesses throughout his

career while crediting an equally astonishingly low percentage

of employer witnesses. App. 49. Petitioner is not the first

litigant to raise the issue of Judge Itkin’s bias. In Joy

Recovery Technology Corp. the employer filed exceptions to

ALJ Itkin’s determinations of credibility and conducted a

study of his past decisions. App. 28, 50. This study analyzed

905 witnesses from 113 CA and CA/RC cases between 1973

and 1995, and found that ALJ Itkin was 4,6 times more likely

to credit an NLRB witness than an employer witnesses. App.

28. ALJ Itkin credited 532 of the 572 NLRB witnesses, or

93%, testifying before him between 1973 and 1995. On the

other hand, he credited only 69 of 333 employer witnesses, or

21%, between 1973 and 1995. However, the Seventh Circuit

Court of Appeals disregarded the employer’s evidence

because in its opinion the data was compiled in an unscientific

manner.

Using the Joy Technology numbers as a base,

Petitioner conducted a more sophisticated statistical analysis

of Judge Itkin’s credibility determinations. Statistically, if we

assume a probability of .5 in crediting witnesses, then one

would expect only 286 of the 572 General Counsel witnesses

to be credited. Amazingly, the actual observed number of

532 is 20.6 standard deviations from the expected number of

286, or a probability of 1 out of an unimaginable number

(essentially 2 followed by 110 zeros). If we assume that the

General Counsel’s witnesses are credible 60% of the time, the

observed number is 16.1 standard deviations from the

expected number of 343. Applying an assumption of 70%

4

ee

credibility, the expected number is 400 and the number of

standard deviations is 12, and at 80%, the expected number

is 458 and the number of standard deviations is 7.8. If we

assume that the General Counsel’s witnesses are credible an

amazing 90% of the time, the probability of crediting 532 of

572 witnesses is still 1 out of 130, or 2.4 standard deviations

from the expected norm.

In Title VII cases, this Court has held that such large

statistical deviations from the expected norm are sufficiently

suspect as to give rise to an inference of discrimination.

Hazelwood School District v. U.S., 433 U.S. 299, 97 S.Ct.

2736, 53 L.Ed. 2d 768 (1977) (unlawful discrimination may

be suspected “if the difference between the expected value and

the observed number is ‘greater than two or three standard

deviations.’”). Further, this Court has reached a similar

conclusion with regards to unfairness in the selection of

jurors. Castenada v. Partida, 430 U.S. 482, 97 S.Ct. 1272,

51 L.Ed. 2d 498 (1977) (a difference of 12 standard

deviations between expected and observed distributions made

out a prima facie case of discrimination in jury selection). In

this case, the difference between the observed and expected

values is less than three standard deviations only if one

assumes that the General Counsel’s witnesses are credible

90% of the time. Even if the assumption is that the General

Counsel’s witnesses are credible 70% of the time, ALJ Itkin’s

credibility determination history is still 12 standard

deviations, the same number of standard deviations found to

establish a prima facie case of discrimination in Castenada.

App. 49.

In NLRB v. Joy Recovery Technology Corp., the

Seventh Circuit Court of Appeals deferred to ALJ Itkin’s

credibility decisions because “the judge on the front line is in

the best position to determine which. . . witnesses should be

8

E_™

credited.” 1998 U.S. App. 1047, App. 52-53. However,

Judge Itkin’s credibility determinations do not warrant the

usual deference due to such administrative decisions. The

National Labor Relations Board correctly noted in its ruling

on Petitioner’s case that an ALJ’s credibility findings should

not be overruled unless the clear preponderance of all

evidence convinces the reviewing court that the credibility

findings are incorrect. NLRB v. John Conlee Enterprises, 317

N.L.R.B. 1082, enforced 1997 U.S. App. LEXIS 23176,

citing Standard Dry Wall Products, 91 N.L.R.B. 544 (1950),

enforced, 188 F.2d 362 (3rd Cir. 1951). App. 7. However,

this rule is not without exception. According to the Court of

Appeals for the Fourth Circuit, an ALJ’s credibility findings

are not entitled to this deference when such findings are set

out in a generalized, conclusory manner. Be-Lo v. NLRB,

126 F.3d 268, 278 (4th Cir. 1997). Further, § 17450.30(1)

of the NLRB’s Judge’s Manual reinforces this principal,

stating that an ALJ should indicate “carefully and specifically

how he arrived at his credibility resolutions.” National Labor

Relations Board, Manual: Division of Judges (1984).

Petitioner contends that, not only did ALJ Itkin set out his

credibility determinations in a “general [and] conclusory

manner” in the instant case, he does so on a regular basis

(particularly when discrediting employer witnesses).

Examining Judge Itkin’s decisions, it is evident that he

utilizes ambiguous language while establishing his credibility

determinations, especially when discrediting employer

witnesses. In discrediting Petitioner’s witnesses, ALJ Itkin

simply stated that “the testimony of Conlee, Sechler, and

Roberts [Petitioner’s witnesses] was at times vague, unclear,

incomplete, and contradictory.” 317 N.L.R.B. 1082, (App.

14). No specific examples of “incomplete” or

“contradictory” testimony are actually cited, only a blanket

declaration. Jd. Judge Itkin is notorious for such generalized

9

rulings, having discredited employer witnesses with the same

language numerous times. See T&J Container Systems, 316

N.L.R.B. 771 (1995), (“[t]estimony . . . was at times

incomplete, unclear, vague, evasive, shifting, and

contradictory.”); Wimpey Minerals U.S.A., Inc., 316

N.L.R.B. 803 (1995), (“I find the testimony. . . to be at

times incomplete and unclear.”); LC.C. Air Services Corp.,

1995 N.L.R.B. 324 (1995), (“[t}he testimony. . . was at times

vague, general, and unclear.”); Getman Corp., 1996

N.L.R.B. 180 (1996), (“[t]estimony was at times vague,

incomplete, unclear, evasive, and shifting”). Petitioner

asserts that the above-cited cases sufficiently demonstrate the

ambiguous language ALJ Itkin utilizes while discrediting

employer witnesses, and will not burden this Court further

with additional examples.

When holding ALJ Itkin’s credibility determinations

up to the light of case law and the NLRB judicial manual, the

general and conclusory nature of the Judge’s credibility

rulings is apparent. Accordingly, Petitioner asserts that to

defer to ALJ Itkin’s credibility determinations is erroneous as

a matter of law.

Petitioner contends that the statistical evidence

demonstrates that Judge Itkin prejudges the credibility of

witnesses before hearing their testimony, Or alternatively that

Judge Itkin’s actions would raise reasonable doubt as to his

impartiality in the mind of a reasonable man. Further,

Petitioner asserts that because ALJ Itkin has consistently

prejudged the credibility of witnesses throughout his career, .

ALJ Itkin prejudged the credibility of the witnesses during

Petitioner’s hearing as well. Such activity is evidence of

judicial bias, Withrow, supra, and is in violation of

Petitioner’s Due Process Rights.

10

EE

This Court should grant the Petition in this case based

upon ALJ Itkin’s statistically demonstrable bias alone,

because this bias deprived Petitioner of due process.

However, due process in this case, and in any NLRB case

before ALJ itkin, is further compromised by Section 10060 of

the NLRB’s Casehandling Manual. See App. at 50. Section

10060 deals with credibility determinations by the NLRB’s

Regional Office at the investigation stage. This Section

instructs the Region that, in cases where the Region is unable

to resolve credibility and where the resolution of the conflict

“means the difference between dismissal and issuance of

complaint, a complaint should be issued.” (emphasis in

original) As previously demonstrated by Petitioner and by

the employer in Joy Technology, ALJ Itkin is 4.6 times more

likely to credit NLRB witnesses than the employer’s

witnesses, even though credibility may have been a close call

in the investigation. In effect, once the NLRB files a

complaint, ALJ Itkin uses a “rubberstamp” to credit witnesses

whose testimony may have been questionable even to the

NLRB investigators. Thus, when Section 10060 is combined

with ALJ Itkin’s bias in favor of NLRB witnesses, due

process is almost a guaranteed “no-show” at any hearing

before ALJ Itkin where an employer’s alleged unfair labor

practice is an issue.

One of the most important principals in the

jurisprudence of a democratic society is that every person has

the right to a fair trial, administered by an impartial

adjudicator. The Founding Fathers of this country held dear

the concept of an impartial tribunal, and accordingly

guaranteed that every American would have access to such an

impartial tribunal by drafting the Fifth Amendment’s Due

Process Clause. The Due Process Clause is the cornerstone of

American jurisprudence. It guarantees a person a fair and

impartial tribunal in both criminal and civil cases. “A fair

11

trial in a fair tribunal is a basic requirement of due process.

Fairness of course requires an absence of actual bias in the

trial of cases.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct.

623, 99 L.Ed. 942 (1955); see also NLRB v. Ford Motor Co.,

114 F.2d 905, 909 (6th Cir. 1940), cert. denied 312 USS.

689, 61 S.Ct. 621, 85 L.Ed. 1126 (1941). The right to an

impartial adjudicator is so fundamental that “any departure

from it shocks [ ind’s] common sense and sentiment of

justice.” NLRB v. Phelps, 136 F.2d 562, 564 (Sth Cir. 1943).

The right to an impartial judge is necessary to the

American legal system for a number of reasons. An impartial

tribunal helps guarantee that life, liberty, or property will not

be seized based on erroneous OF distorted impressions of the

law. Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct.

1610, 64 L. Ed. 2d 182 (1980); Johnson v. Mississippi, 403

U.S. 212, 216, 91 S.Ct. 1778, L. Ed. 2d 423 (1971).

Additionally, a fair tribunal provides “both the appearance

and reality of fairness, * generating the feeling, so important

to a popular government, that justice has been done.””

Marshall, 446 U.S. at 242, quoting Joint Anti-Fascist

Committee v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 95

L.Ed. 817 (1951). Accordingly, even if the record provides

sufficient evidence to support the judgment, once “bias and

prejudice in a judge first rears its ugly head” the judgment is

tainted and cannot stand. Phelps, 136 F.2d at 564.

The statistical evidence is significant enough to create

a reasonable doubt in the mind of a reasonable man

concerning ALJ Itkin’s impartiality. Petitioner thus

respectfully submits that ALJ Itkin appears, even if he did

not, to have predetermined the credibility of witnesses not

only in Petitioner’s case, but in CA and CA/RC cases

generally. Predetermination or the appearance of

predetermination of an issue is sufficient to prove judicial

12

OS _™S:—( eet—~™

bias. See Gedan, 880 F.2d at 135. Because of Judge Itkin’s

bias in favor of NLRB witnesses, which bias deprived

Petitioner of Due Process, Petitioner requests that this Court

grant this Petition and remand this case to the Sixth Circuit

Court of Appeals with instructions that a new hearing be

conducted before an unbiased ALJ.

Il. THE SIXTH CIRCUIT COURT OF APPEALS

ERRED WHEN IT HELD THAT THE ISSUE OF

THE ADMINISTRATIVE LAW JUDGE’S BIAS

WAS NOT PROPERLY BEFORE IT BECAUSE

PETITIONER DID NOT RAISE THE ISSUE

BEFORE THE NLRB.

The Sixth Circuit Court of Appeals refused to consider

Petitioner’s statistical evidence for two reasons. First, the

Court held that the one hundred-thirteen cases contained in

Petitioner’s analysis were not part of the record. Second, the

Court stated that the issue of bias had not been properly

brought before the NLRB. See App. 4. Petitioner asserted in

its Petition for Rehearing, and continues to assert, that the

Sixth Circuit was in error. App. 20.

The Sixth Circuit’s ruling was wrong for two reasons.

First, the issue of ALJ Itkin’s bias was brought before the

NLRB on several occasions. As demonstrated in its Petition

for Rehearing En Banc, Petitioner presented the issue of ALJ

Itkin’s bias to the NLRB numerous times. Statements such

as, “[g]iven the undisputed evidence, it is clear that the ALJ

made the ‘temporary’ finding only because it was his goal to

reject all evidence submitted even if it were relevant and

uncontroverted” (emphasis in original) and “[t]he ALJ

admitted this statement (citation omitted) but as he did with

most of [Petitioner]’s evidence, ignored its significance” were

present in the record before this case was considered by the

13

Sixth Circuit Court of Appeals. App. 24. Furthermore, in its

decision the NLRB itself acknowledged that Petitioner

excepted to Judge Itkin’s credibility determinations, but the

Board refused to overrule such determinations. See App. 7.

Second, Petitioner had no reason to examine all of

Judge Itkin’s previous decisions in order to determine if the

ALJ was biased until after Petitioner’s Decision was already

rendered. Further, collection and computation of the statistical

evidence used to demonstrate ALJ Itkin’s bias was a long and

difficult process. So, Petitioner’s first opportunity to provide

the statistical evidence in its present form was at the Sixth

Circuit level. Moreover, the issue of Due Process is so

important, as discussed supra, that a party should be able to

assert a violation of his or her rights under the Fifth

Amendment at any time, even post judgment. This is no

different than asking the Court for a new trial after

discovering that the jury had been tampered with.

Petitioner contends that the Sixth Circuit Court of

Appeals was in error when it refused to consider Petitioner’s

statistical evidence. The issue of judicial bias was raised

before the NLRB, and the statistical evidence was presented

at the earliest practical point. Accordingly, Petitioner

requests that this Court grant the Petition, and in the event

that this case is not remanded for a new hearing before an

impartial ALJ, that this Court remand this case to the Sixth

Circuit Court of Appeals with instructions to consider

Petitioner’s statistical evidence of ALJ Itkin’s bias.

CONCLUSION

The right to an impartial tribunal is the foundation of

a democratic society. Our system of government will not

suffer the existence of a tribunal that favors one party over

14

———

another, or even appears to be impartial. To do so would

violate both the Due Process Clause of the U.S. Constitution

as well as the notions of fairness and justice. Judge Itkin’s

history of crediting 93% of NLRB witnesses credible while

discrediting 79% of employer witnesses clearly indicates that

he is biased in favor of the NLRB. This Court would never

allow such bias on the part of a district court judge who only

considered the testimony of men over women, or whites over

African-Americans, in reaching decisions. Do not Employers

also rest underneath the umbrella of Due Process? The

obvious the answer is that they do, yet if this Court allows the

decision of the Sixth Circuit to stand, Petitioner will be

permanently deprived of the rights guaranteed to all citizens

of the United States. Thus, Petitioner respectfully requests

that this Court grant its Petition and either remand this case to

the Sixth Circuit Court of Appeals with instructions that a new

hearing be conducted before an unbiased ALJ, or in the event

that this case is not remanded for a new hearing before an

impartial ALJ, that this Court remand this case to the Sixth

Circuit Court of Appeals with instructions to consider

Petitioner’s statistical evidence of ALJ Itkin’s bias.

/s/

Philip K. Lyon

Jack, Lyon & Jones, P.A.

11 Music Circle South, Suite 202

Nashville, TN 37203

(615) 259-4664

Counsel of Record for Petitioner

15

APPENDIX A

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

JOHN CONLEE ENTERPRISES, INC.,

Respondent.

NO. 96-5691

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

1997 U.S. App. LEXIS 23176

August 28, 1997, Filed

NOTICE: NOT RECOMMENDED FOR FULL-TEXT

PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS

CITATION TO SPECIFIC SITUATIONS. PLEASE SEE

RULE 24 BEFORE CITING IN A PROCEEDING IN A

COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER PARTIES AND THE

COURT. THIS NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported in Table Case Format

at: 124 F.3d 198, 1997 U.S. App. LEXIS 30724.

PRIOR HISTORY: ON APPLICATION FOR

ENFORCEMENT OF AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD. 26-CA-16335. 7-13-95.

Al

—=—_—_——

OO O20FQ-e—X -"O- ©.

NLRB v. John conlee Enterprises, Inc.,

1997 U.S. App. LEXIS 23176

DISPOSITION: Order of the National Labor Relations Board

ENFORCED.

COUNSEL: For NATIONAL LABOR RELATIONS

BOARD, Petitioner: Aileen A. Armstrong,

Dep.Asso.Gen.Counsel, Walter Meyer, Farrell Tate, National

Labor Relations Board, Washington, DC.

For JOHN CONLEE ENTERPRISES, INC., Respondent:

Philip K. Lyon, Jack Lyon & Jones, Nashville, TN.

JUDGES: BEFORE: MARTIN, Chief Judge; RYAN and

BATCHELDER, Circuit Judges. Alice M. Batchelder, Circuit

Judge, concurring in part and dissenting in part.

OPINION: PER CURIAM. Section 10(a) of the National

Labor Relations Act vests the National Labor Relations Board

with jurisdiction to prevent any person from engaging in any

unfair labor practice affecting commerce. After employees of

John Conlee Enterprises filed an unfair labor practice charge,

the National Labor Relations Board issued a complaint

alleging that, by threatening and subsequently firing its

employees, John Conlee Enterprises engaged in conduct that

violated the National Labor Relations Act. After a hearing on

the issues, Administrative Law Judge Frank H. Itkin rendered

a decision against John Conlee Enterprises. Upon review of

the decision, a three judge panel of the National Labor

Relations Board affirmed the Administrative Law Judge's

rulings, findings and conclusions and adopted his

recommended Order. Concluding that John Conlee

Enterprises’ actions violated the National Labor Relations

Act, the National Labor Relations Board ordered the company

to cease and desist from committing such unfair labor

A2

NLRB v. John conlee Enterprises, Inc.,

1997 U.S. App. LEXIS 23176

practices and to post copies of an appropriate notice

acknowledging the order. The order also directs John Conlee

Enterprises to reinstate the musicians and to make them

whole. Section 10(e) of the National Labor Relations Act

gives the Board the power to petition this Court for the

enforcement of its order. Section 10(e) also vests this Court

with the power to enforce, to modify and enforce or to set

aside in whole or in part the order of the Board. Of course,

this Court must also be mindful that we must sustain the

Board's findings of fact as long as they are supported by

substantial evidence, even if we might have reached a

different conclusion upon reviewing the matter de novo. 29

U.S.C. @ 160(e); Universal Camera Corp. Vv. N.L.R.B., 340

U.S. 474, 493, 95 L. Ed. 456, 71 S. Ct. 456 (1950); Indiana

Cal-Pro, Inc. v. N.L.R.B., 863 F.2d 1292, 1297 (6th Cir.

1988). Because there is ample evidence to sustain the Board's

findings, we will enforce the order of the Board.

John Conlee Enterprises manages, promotes and sells

the entertainment services of John Conlee. The company iS

Federation of Musicians but John Conlee Enterprises does not

have a bargaining or contractual relationship with that union.

During February, 1994, Hall, Tate and the Wisemans

discussed their dissatisfaction with John Conlee Enterprises’

policy of deducting the amount of their separately earned

A3

NLRB v. John conlee Enterprises, Inc..,

1997 U.S. App. LEXIS 23176

funds from their weekly salary during the winter months.

Specifically, when John Conlee Enterprises performed at the

Grand Old Opry, John Conlee Enterprises would deduct the

amount each employees received from the Opry from their

paychecks as a way to equalize its expenses during a season

of reduced revenue. John Conlee Enterprises would also

switch employees to a day rate in an attempt to conserve funds

in the winter.

Ultimately the musicians became so dissatisfied with

the pay arrangement that they contacted the Union to discuss

their concerns and options. Based on the Union's advice, the

four decided to file a grievance with the Union despite their

fear that John Conlee would retaliate by firing them. As a

precautionary measure, the employees also removed

equipment and items belonging to them from the bus when

they returned to Nashville. Conlee and Sechler saw Hall

removing equipment from the bus. Although Conlee asked if

the equipment was broken, he did not regard the event as

unusual, especially during the winter months. Hall told

Conlee that he was cleaning the equipment.

On March 5, a few days after removing the equipment

from the bus, Hall approached Sechler and informed him of

the musician's intent to file a grievance. Hall also told Sechler

that he was letting Sechler in on the secret because he didn't

want to go along with the other musicians’ plan to "blindside"

Conlee. Sechler asked Hall if he was ready for the

"consequences" of filing the grievance and suggested that Hall

should know what Conlee would do. When Hall asked Sechler

if he meant that Conlee would fire him, Sechler replied "it's

pretty obvious."

A4

NLRB v. John conlee Enterprises, Inc.,

1997 U.S. App. LEXIS 23176

On March 6, Sechler told Conlee everything about his

conversation with Hall. Thereafter, Conlee inspected the bus

and observed that the musicians had removed their equipment

and personal items. Although Conlee testified that he assumed

that the employees "didn't intend to come back," he never

called any of them to verify that suspicion or to see if they

intended to play at the Company's engagement the next

weekend.

On March 7, Conlee received a copy of the grievance

filed by the employees and, on March 8, Conlee informed all

of the employees by letter that he had concluded that they had

terminated their employment based on the removal of their

things from the bus. Tate, Hall and Wiseman called Conlee

and advised him that they had not terminated their

employment. Nonetheless, Conlee refused to rescind the

terminations. A future letter from Conlee advised the

employees that they had been "permanently replaced.” In fact,

John Conlee Enterprises had hired three "per day" employees

to perform over the next weekend only.

Given the posture of the corporation's appeal and these

facts, we are faced with the job of deciding: (1) whether

substantial evidence supports the Board's finding that John

Conlee Enterprises violated @ 8(a)(1) of the National Labor

Relations Act by threatening an employee with discharge

because he and other employees sought the support of the

Union concerning their dissatisfaction over salary matters,

and (2) whether substantial evidence supports the Board's

finding that John Conlee Enterprises violated @ 8(a)(1) and

(3) of the National Labor Relations Act by terminating

employees because they sought the support of the Union

AS

el

NLRB v. John conlee Enterprises, Inc..,

1997 U.S. App. LEXIS 23176

concerning their dissatisfaction over salary matters.

Although Sechler testified that he was referring to the

probability that Hall's actions would impair his personal

relationship with Conlee, both Administrative Law Judge Itkin

and the Board used the testumony regarding Sechler's

reference to "consequences" as evidence of a threat of

retaliation. This Court must accept the Board's interpretation

if there is substantial evidence to support that conclusion. Hall

insisted that he pushed Sechler to define "consequences."

According to Hall, he asked Sechler "what do you mean, fire

me?" and Sechler replied “it's pretty obvious." In light of

Hall's testimony, which is a rational explanation of the

events, Sechler's explanation seems flimsy at best. We

therefore support the Board's finding that John Conlee

Enterprises violated @ 8(a)(1) of the National Labor Relations

Act by threatening an employee with discharge because he and

other employees sought the support of the Union concerning

their dissatisfaction over salary matters.

Despite Conlee's claims that his March 8 letter to the

musicians reflected only his conclusion that the musicians had

quit, both Administrative Law Judge Itkin and the Board

believed that Conlee wrote the dismissal letter in reply to the

grievance filed by the employees. Again, this Court must

accept the Board's interpretation if there is substantial

evidence to support that conclusion. The evidence before the

Board revealed that Conlee received a copy of the grievance

the day before he wrote the dismissal letter. The musicians

also reported that even in light of Conlee's desperation for

musicians for the next weekend, Conlee never contacted any

of them in order to confirm his alleged conclusion that they

A6

NLRB v. John conlee Enterprises, Inc..,

1997 U.S. App. LEXIS 23176

had quit. Instead, the evidence shows that Conlee simply

contacted his attorney before he wrote the letter. Accordingly,

we support the Board's finding that John Conlee Enterprises

violated @ 8(a)(1) and (3) of the National Labor Relations Act

by terminating employees because they sought the support of

the Union concerning their dissatisfaction over salary matters.

Finally, John Conlee Enterprises uses 113 of

Administrative Law Judge Itkin's prior cases to support its

claim that Administrative Law Judge Itkin did not provide it

with a fair and impartial tribunal. The corporation alleges that

these cases produce a pattern of crediting almost all employee

witnesses and disregarding employer witnesses without regard

to the substance of their testimony. Even if this claim had

merit, the 113 prior cases are not part of the record in this

case. More importantly, this Court cannot address contentions

not properly before it because John Conlee Enterprises did not

raise this claim before the Board. Section 10(e) of the Act

precludes appellate court review under these circumstances

"unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances." We

continue to define this exception nar-owly, and refuse to

review this issue in order to give proper deference to the

value and importance of the Board's labor relations expertise.

N.L.R.B. v. Allied Products Corp., Richard Brothers

Divisions, 548 F.2d 644, 653 (6th Cir. 1977).

We hereby ENFORCE the order of the National Labor

Relations Board.

CONCUR BY: Alice M. Batchelder (In Part)

A7

Dc

NLRB v. John conlee Enterprises, Inc..,

1957 U.S. App. LEXIS 23176

DISSENT BY: Alice M. Batchelder (In Part)

DISSENT: Alice M. Batchelder, Circuit Judge, concurring in

part and dissenting in part. I concur in the majority opinion

regarding its findings pursuant to @ 8(a)(1), but finding no

support for a violation of @ 8(a)(3), I respectfully dissent

from that part of the majority's opinion.

The NLRA, in 29 U.S.C. @ 157, provides

"employees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to engage

in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection." The first

provision in question, 29 U.S.C. @ 158(a)(1) or @ 8(a)(1),

merely makes interference with the rights articulated in 29

U.S.C. @ 157 a violation of the act. The other provision in

question, 29 U.S.C. @ 158(a)(3), or @ 8(a)(3), on the other

hand, does not refer back to 29 U.S.C. @ 157, but rather

contains independent language regarding violations. The

provision, as codified in the United States Code, reads as

follows:

(a) It shall be an unfair labor practice for an employer --

*x* *

(3) by discrimination in regard to hire or tenure of

employment or any term or condition of employment to

encourage or discourage membership in any labor

organization... .

29 U.S.C. @ 158(a)(3). As clearly articulated, @ 8(a)(3)

protects only against discrimination which is intended to

A8&

i asa eiie, TTT

———————

NLRB v. John conlee Enterprises, Inc.,

1997 U.S. App. LEXIS 23176

"encourage or discourage membership in any labor

organization."

The difference between violation of @ 8(a)(1) and @

8(a)(3) has been recognized by the NLRB. In Roemer Indus.,

Inc., 205 N.L.R.B. 63, 1973 NLRB LEXIS 634, 1973 WL

5090 (1973) the employer fired two employees for walking off

the job after three of their coworkers were fired. Violation of

both @@ 8(a)(1) and 8(a)(3) was asserted. The ALJ, as

affirmed by the Board, found a violation of @ 8(a)(1) because

the employer had interfered with the employees "concerted

activities." Id. at *5. The ALJ refused to find a violation of @

8(a)(3), noting that "absent . . . any evidence of union

activities" there was not "a sufficient basis . . . to prove [the

employer] also violated Section 8(a)(3) of the Act by

discharging or refusing to reinstate [the employees]."Id. A

similar outcome was had in National Airmotive, 207

N.L.R.B. 517, 1973 NLRB LEXIS 78, 1973 WL 4639

(1973), where the ALJ initially found a violation of both @@

8(a)(1) and 8(a)(3). The Board overturned the holding as to @

8(a)(3), finding that the activities of the employee, while

"related to the terms and conditions of employment" were not

"activity on behalf of a union." Id. at * 1. These opinions are

also supported by NLRB v. Washington Aluminum Co., 370

U.S. 9, 8 L. Ed. 2d 298, 82 S. Ct. 1099 (1962), and NLRB

v. Fry Roofing Company, 651 F.2d 442 (6th Cir. 1981), in

which allegations of interference with concerted activity

under @ 8(a)(1) did not lead to accusations of a violation of

@ 8(a)(3). In both cases, only @ 8(a)(1) is discussed.

In the present case, all of the parties, including John

Conlee and Steve Sechler, were members of a union. But the

A9

————=~

NLRB v. John conlee Enterprises, Inc..,

1997 U.S. App. LEXIS 23176

parties agree that the union had no bargaining agreement with

respondent employer, the union had no power to act on the

employees’ grievance, and the employer had no obligation to

respond to the grievance. Finally, there is no evidence

whatsoever in the record that anything this employer did with

regard to these employees was intended either to encourage or

discourage union membership, or had that effect. Under these

facts, it is clear that the employees’ attempt to protest, while

concerted activity under @ 8(a)(1), did not amount to union

activity under @ 8(a)(3). There simply was no union activity

here; there was no issue of union membership; there was no

intention to encourage or discourage union membership on

behalf of the employer. Union membership was irrelevant.

The record supports no other conclusion. Therefore, while I

concur with the majority's conclusion regarding violation of

@ 8(a)(1), I respectfully dissent from that part of the majority

opinion which finds a violation of @ 8(a)(3).

A10

APPENDIX B

96-5691

FILED

December 8, 1997

LEONARD GREEN, Clerk

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

£

JOHN CONLEE ENTERPRISES, INC.,

Respondent.

ORDER

BEFORE: MARTIN, Chief Judge; RYAN and

BATCHELDER, Circuit Judges.

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

All

A

—————— rr

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the petition

were fully considered upon the original submission and

decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green, Clerk

Al2

APPENDIX C

John Conlee Enterprises, Inc. and William D. Hall Sr.

Case 26-CA-16335

NATIONAL LABOR RELATIONS BOARD

317 N.L.R.B. 1082; 1995 NLRB LEXIS 660;

149 L.R.R.M. 1280; 317 NLRB No. 156

July 13, 1995

[*1]

DECISION AND ORDER

By Margaret A. Browning, Member, Charles I. Cohen,

Member, John C. Truesdale, Member.

COUNSEL:

Jane Vandeventer, Esq., for General Counsel.

Phillip K. Lyon, Esq., for Respondent.

NOTICE: This opinion is subject to formal revision before

publication in the Board volumes of NLRB decisions. Readers

are requested to notify the Executive Secretary, National

Labor Relations Board, Washington, D.C. 20570, of any

typographical or other formal errors so that corrections can be

included in the bound volumes.

Al3

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

OPINION:

On March 24, 1993 Administrative Law Judge Frank

Itkin issued the attached decision. The Respondent filed

exceptions and a supporting brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and record in

light of the exceptions and briefs and has decided to affirm the

judge's rulings, findings, nl and conclusions and to adopt the

recommended Order.

nl The Respondent has excepted to some of the

judge's credibility findings. 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), enfd. 188 F.2d 362 (3d

Cir. 1951). We have carefully examined the record and find

no basis for reversing the findings.

The judge inadvertently omitted from his decision the

factual basis of our jurisdiction in this case.

The Respondent admitted that it is a corporation with

an office and place of business in Nashville, Tennessee,

engaged in the business of providing entertainment services.

The Respondent also admitted that during the 12-month period

preceding the issuance of the complaint it derived income in

excess of $ 50,000 from the sale of its services to customers

located outside the State of Tennessee. Finally, the

Al4

———————

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

Respondent admits that, at all material times, it has been an

employer engaged in commerce within the meaning of Sec.

2(2), (6), and (7) of the Act. [*2]

ORDER

The National Labor Relations Board adopts the

recommended Order of the administrative law judge and

orders that the Respondent, John Conlee Enterprises, Inc.,

Nashville, Tennessee, its officers, agents, successors, and

assigns, shall take the action set forth in the Order.

Dated, Washington, D.C. July 13, 1993

Margaret A. Browning, Member

Charles I. Cohen, Member

John C. Truesdale, Member

ALJ: FRANK H. ITKIN

ALJ-DECISION:

DECISION

FRANK H. ITKIN, Administrative law Judge. An

unfair labor practice charge was filed in this proceeding on

August 16 and a complaint issued on September 29, 1994.

The General Counsel alleged in the complaint that Respondent

Employer violated Section 8(a)(1) of the National labor

Relations Act by threatening an employee with discharge

because the employee had filed a grievance with the Union,

Al5

_— [Ea

John Conlee Enterprises, Inc..,

317 N.L.R.B. 1082 (1995)

Local 257, American Federation of Musicians. The General

Counsel further alleged that Respondent Employer violated

Section 8(a)(1) and (3) of the Act by discharging employees

William D. Hall Sr., Rex Wiseman, Jean Ann Wiseman, and

: Lonney Tate because they had supported the Union and

engaged in protected concerted activities. The complaint was

amended during ané following the close [*3] of the hearing.

nl Respondent Employer denied violating the Act as alleged.

nl The General Counsel and counsel for the Employer

filed a joint motion following the close of the bearing to delete

the words "/John Conlee" from the caption and pleadings filed

herein because the General Counsel has withdrawn any claim

that "John Conlee as an individual is a Respondent herein."

(See ALJ Exh. 1.) The joint motion is granted.

A hearing was held on the issues raised on January 11,

1995, in Nashville, Tennessee. And, on the entire record,

including my observation of the demeanor of the witnesses, I

make the following

FINDINGS OF FACT

Respondent Employer, John Conlee Enterprises, Inc.,

provides entertainment services and is admittedly engaged in

commerce as alleged. The Union, Local 257, American

Federation of Musicians, is admittedly a labor organization as

alleged. John Conlee, the Employer's president and chief

operating officer, performs as a country music singer with a

group of musicians. Included within this group are the four

alleged discriminatees in this case. The evidence pertaining to

the Employer's treatment of these four alleged discriminatees

Al6

——_—

ee

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

as a consequence of their attempt [*4] to file a grievance

with the Union and engage in related concerted activities, is

summarized below.

William D. Hall Sr. testified that he started working

for the Employer as a musician in early 1980; that he has been

a member of the Union for about 15 years; and that he has

worked under the Union's "Nashville Road Scale" (G.C. Exh.

2) during the past few years. Hall generally explained his and

his coworker's' "pay arrangement” with the Employer, as

follows:

We were salaried usually until wintertime and then we would

be approached with going possibly to a day rate . . . During

the winter . . . we would work the Grand Old Opry and [the

Employer] would deduct that from our salary. Then, as work

got worse . . . [the Employer] would put us on a day rate.

Hall noted that the "day rate" was related to the

Union's "Nashville Road Scale."

Hall recalled that during February 1994, he and his

co-workers, Rex Wiseman, Jean Ann Wiseman, and Lonney

Tate, had discussed among themselves the Employer's "pay

method."

We had talked amongst each other and felt that it was unfair.

And so therefore we went to the Union, or actually made

phone calls to the Union, to discuss whether this was fair

[*5] or unfair... we were confused. . . . [The Union]

informed us that it was unfair, but before they could do

anything we would have to come in as a unit and file a

grievance against [the Employer] and then they would take it

Al7

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

before the board and make their decision.

Hall and his coworkers "decided to file a grievance as

the Union had advised.” General Counsel Exhibit 3 is a copy

of the "grievance" signed by employees Hall, Rex and Jean

Ann Wiseman, and Tate on March 4, 1994, stating:

Sections violated: Article XIII, Section 2, Local 257

Nashville Road Scale.

We the undersigned attest that member John Conlee

violated the above named sections of the labor agreement.

John Conlee routinely, over the course of several years,

deducted Opry pay from the weekly salaries of the grievants.

John Conlee also changed the pay plan of the grievants over

the course of several years from guaranteed salary to day rate,

without timely notice, in violation of the labor agreement.

On the following day, March 5, as Hall further

testified, Hal! had the following conversation with the

Employer's road manager and band leader, Steve Sechler,

I [Hall] said . . . Steve . . . we've gotten together and

[*6] we're going to file a grievance with the Union against

John [Conlee] over deducting our Opry pay and putting us on

a daily rate at will. He [Sechler] looked at me and said, well,

are you prepared to take the consequences. . . . I said, what

do you mean, fire me. . . . He said, well, it's pretty obvious.

Hall noted that the above "grievance" was in fact filed with

the Union on March 7, and it was stipulated that the

Employer's business manager, David Roberts, "picked up" a

Al8

or Geel

Bite, th abe hE eRitry Se hiss

John Conlee Enterprises, Inc.

317 N.L.R.B. 1082 (1995)

copy of the grievance from the Union on March 7. (See Tr.

21 to 22.) n2

n2 The Employer also "picked up" a "redrafted" copy

of the "grievance" from the Union on March 13. (See Tr. 23

and G.C. Exh. 4.)

Thereafter, on or about March 9, employee Lonney

Tate telephoned Hall apprising Hall that Tate had received a

"letter" from the Employer stating, in effect, that the

Employer “was sorry to hear of our departure," “wished us

luck,” and “hated that our relationship had to end this way."

(See G.C. Exh. 8.) Hall then instructed Tate that "that's not

true,” "you should call Mr. Conlee and tell him the truth,"

"we didn't . . . quit." Hall thereafter also received a copy of

the above "letter." n3 In addition, on [*7] the following

day, March 10, there was a "message" on Hall's telephone

answering machine from both Company President Conlee and

Business Manager Roberts stating:

I [Hall] had been terminated and replaced by other

musicians . . . they [the Employer] no longer needed my

services . . . | could file for unemployment.

Hall promptly telephoned Conlee and apprised him that "I

[Hall] didn't know what Steve had told him, but I had not quit

or anything like that." Conlee, in response, then claimed that

"he didn't know what was going on."

n3 This "letter" from Company President Conlee,

dated March 8 (G.C. Exhs. 6, 8, and 11), was sent to Hall,

the Wisemans, and Tate, and recites:

Al9

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

I [Conlee] was surprised to hear of your departure

from Steve Sechler. Steve reported to me that sometime in the

last week you removed all of your personal belongings from

the [Employer's tour] bus as well as cleaned out your locker.

He also indicated that all of your equipment had been

removed. He further reported that bus keys were returned and

were left hanging on the rack. Just to satisfy my own mind I

also checked the bus and found Steve's report to be accurate.

Given the fact that never before have you cleaned out

your locker, taken all of your equipment, etc., it is obvious

that you have terminated your relationship with me. I am

sorry you have chosen to leave but I thank you for your help

over the years and I wish you the best of luck... . [*8]

Hall, the Wisemans, and Tate subsequently received

the following letter, dated March 10, from Company

President Conlee (G.C. Exh. 5):

After receiving my [Conlee's] letter of March 8,

Lonney Tate called to find out his status. I thought the rest of

you would have many of the same questions so I am trying to

notify all of you by phone and this letter.

Based on the facts described in my March 8 letter

[quoted in fn. 3, above], I needed to be sure that I would have

a band so all of you have been permanently replaced. Lonney

Tate asked about the status of my jobs this weekend and this

notice will let you know that you will not be on the list for

these jobs and other musicians will be taking your place.

A20

John Conlee Enterprises, inc.,

317 N.L.R.B. 1082 (1995)

After serious thought I have decided if you file for

unemployment benefits not to contest it without regard to my

right to do so.

Hall, on March 14, notified Company President

Conlee in writing (G.C. Exh. 7):

Thank you for taking time to talk with me on the

phone on. . . March 10. I did not receive your letter dated

March 8... until March 12.... You said in the letter you

were surprised to hear of my departure from Steve Sechler. I

am sure that I was equally surprised since [*9] at no time

did I verbally or in written form give any indication that I

desired to terminate our working relationship.

Hall further testified with respect to Conlee's claim

that Hall and his coworkers had "terminated" their

employment because, inter alia, they had removed all of

[their] personal belongings from the [Employer's tour] bus"

and items contained in their "locker." (See G.C. Exhs. 6, 8

and 11.) Hall explained:

[We] came in. . . the afternoon of February 27...

prior to filing the grievance... . Steve [Sechler] was getting

in his car and he saw everybody unloading their equipment.

I think he turned around and said, what's going on. And, I

said, well, we're taking the equipment home and [get] it all

cleaned up and repaired.

Hall noted that "there had been other times other than this two

week hiatus that [they] had taken equipment out of the bus” in

order to do "jobs for other employers" or "to do some

A21

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

repairs.” Hall added that he did not tell Company President

Conlee that "he had quit working for him” or "imply by

taking [his] equipment that [he] had quit." Indeed, "after [he]

took [his] equipment out of the [Employer's tour] bus" during

late February, he [*10] worked for the Employer at the

Grand Old Opry on March 4 and 5, 1994. n4

n4 On cross-examination, Hall acknowledged that the

Employer is not a signatory to any collective-bargaining

agreement with the Union and has "never signed the [Union's]

Nashville Road Scale" agreement. Hall believed that "the

Nashville Road Scale of Local 257 [agreement] has provisions

in it for non-signatory employers to use musicians that are

members of the Union.” Hall also noted that Conlee and

Sechler are members of the Union. In addition, Hall

acknowledged that during late February,

We knew we were going to file the grievance. We were in

fear of being fired . . . . So, we all knew that we had the two

week time period that nothing . . . was going on. And so we

pretty much told each other . . . we should go ahead and just

spring clean and if he fires us then we'll not have to make

another trip out here to come and get our equipment off the

bus. Of course, we were taking some equipment anyway

because we had . . . a job that weekend.

The testimony of Lonney Tate (Tr. 52 to 62), Rex

Wiseman (Tr. 63 to 72), and Jean Ann Wiseman (Tr. 73 to

79) essentially corroborates the above-recited testimony

[*11] of Hall. Thus, Tate testified that he has been employed

as a musician by Respondent Employer for some 3 years and

has been a member of the Union for about 6 years. Tate

A22

RAG ALD I Fo LS 0 i ithe

ep ee St | ee ee ce aa

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

explained that he and his coworkers were advised by the

Union that they should file a "grievance" with respect to their

complaint about their wages. Tate later received Company

President Conlee's March 8 letter (G.C. Exh. 8) and promptly

telephoned Conlee to deny, inter alia, that he had "told Steve

or anybody else in the organization that [he] had quit or

resigned from [his] position." Tate asked Conlee "maybe

three times, are you firing me," and “he would never

definitely say yes or no." Tate apprised Conlee,

if I [Tate] did not have something in writing by Friday

afternoon . . . I would be there to work the Grand Old Opry

Friday evening and leave to go to Sikeston, Missouri for the

[scheduled] dates on the. . . 12th and 13th. . . . He [Conlee]

told me that there was no need in doing that, that he would

send me something . . . that would take care of that. [See

G.C. Exh. 9.]

And, Rex Wiseman similarly testified that he has been

employed as a musician by Respondent Employer and a

member of the Union for about [*12] 9 years. He and his

wife Jean Ann Wiseman received Company President

Conlee's March 8 letter and immediately prepared a written

"response" disputing Conlee's assertions that they in effect

had resigned or quit their employment. (See G.C. Exh. 12.)

He also telephoned Conlee and similarly apprised Conlee that

he "hadn't quit." He asked Conlee whether he was "fired,"

and Conlee responded that there would be "another phone call

and letter that should clear that up." (See G.C. Exh. 5.)

Company President John Conlee testified that he is a

member of the Union but is not a signatory to its

A23

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

collective-bargaining agreement; he has never "attempted to

pay scale or in any other manner comply with the Union

contract"; and he is unaware of “any grievance procedures

that are applicable" to his business. Conlee claimed that on

March 6, 1994, his Road Manager Steve Sechler informed

him: "I think we have a problem." Sechler then related to

Conlee "his conversation with Willie Hall following the Opry

the night before" pertaining to the "grievance" to be filed by

the employees. Halli had told Sechler on the previous evening

that Hall and his three coworkers "had signed a grievance and

were going to file (*13} it with the Union,” and Sechler had

then asked Hall, "if they were ready for the consequences of

that." Sechler also related to Conlee:

I [Sechler] just popped up on the [tour] bus just to look

around... . All the closets are clear, all the bedding is gone

. . . [and] I can't find a piece of anything that belongs to any

of [the employees] on the [tour] bus.

Conlee next claimed that, after hearing this, he was in

"shock" and "stunned." Conlee checked the tour bus and "it

did appear to me that the bus had been cleared and I really

didn't think that anybody was coming back." Conlee

instructed his Business Manager David Roberts "to call

counsel to see where we stood as far as the legalities of the

coming weekend contracts." Further, Conlee claimed that he

also had heard a rumor that the "John Conlee band was

disbanded." Conlee testified:

I had by now concluded that these people were not

coming back and so I instructed Steve Sechler to start looking

for replacements.

A24

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

Conlee admittedly had made no effort to "call the

employees to see if they were going to show up" for his

scheduled engagements.

Instead, on March 8, Conlee wrote employees Hall, the

Wisemans and Tate (see G.C. [*14] Exhs. 6, 8 and 11) that

"it is obvious that you have terminated your relationship with

me." Shortly thereafter, Tate telephoned Conlee and stated

that "he hadn't quit,” and Conlee responded that "you've been

permanently replaced." Rex Wiseman similarly had

telephoned "to say that he hadn't quit or they hadn't quit."

Conlee added:

In the early conversation with Tate, he [Tate] indicated

that he'd be showing up [for their scheduled performances]

unless he got clarification of his status. So, thus, the second

letter was sent followed up with a phone call.

Manager Steve Sechler testified that about February 26

or 27, 1994, he had observed employee Hall unloading “his

amp" from the tour bus. Hall then told Sechler that he, Hall,

"was going to clean it up." Sechler noted that Hall and the

other employees thereafter worked the Grand Old Opry

performance on March 5. After that show, Hall told Sechler

about the "grievance," Hall said, "it . . . wasn't fair the way

we'd been taking [out] the Opry money.” Sechler admittedly

replied, "Have you thought about or are you prepared for the

consequences." Sechler reported this information to Conlee

the following day, March 6. He also reported that [*15]

"everything was essentially gone" from the tour bus.

A25

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

Sechler next testified:

Before lunch the next day I [Sechler] received a call

from John [Conlee] . . . and his words [were] . . . all the

circumstances point towards a band walkout and we're going

to need band members to fulfill our next weekend. Go ahead

and start trying to find people.

Sechler assertedly also heard a rumor that "John [Conlee]

doesn't have a band anymore" and he reported this rumor to

Conlee.

Sechler acknowledged that Hall, during his

conversation with Sechler about the "grievance" on March 5,

"never mentioned not continuing to work for John Conlee"

and "didn't say anything to indicate that he and the others

were quitting.” Sechler also acknowledged that Conlee had

not instructed him "to ask any of the employees why they had

taken their equipment home." In addition, Sechler

acknowledged stating in his prehearing affidavit that on

March 7 he had been asked by Conlee "to secure

replacements"; "by that evening I had replacements for that

weekend"; "they were not permanent replacements . . . they

were per day employees."

David Roberts, the Employer's business manager,

testified that the Employer is not a signatory [*16] to the

Union's contract and there was no agreement with the Union

over wages and related terms and conditions of employment.

He recalled Company President Conlee telephoning him to

say, "there's been a grievance filed with the Union" and "I

[Conlee] don't think we have a band." Roberts was "asked"

A26

ai Ginetta IK 5 REI NEP hI ’

Pe eee ea

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

to "check with the Union on the grievance." Roberts

thereafter "picked up the grievance, informed Conlee about

the contents of the "grievance," and was told “we'd better be

checking with our counsel." Roberts thereafter participated in

the preparation of the various communications to the

employees discussed above. Roberts acknowledged that only

three "replacements" were "hired for the weekend." Roberts

also acknowledged that "at the time of [his] discussions with

Conlee about what to do on the 7th and the 8th there was

nothing said about contacting the employees, the band

members, to find out what their intent was."

I credit the testimony of employees Hall, Tate, and

Rex and Jean Ann Wiseman as summarized above. Their

testimony was in large part mutually corroborative, by

uncontroverted documentary evidence, and substantiated by

admissions of Respondent's witnesses. And, they impressed

me [*17] as trustworthy and reliable witnesses. On the other

hand, the testimony of Conlee, Sechler, and Roberts was at

times vague, unclear, incomplete, and contradictory. Conlee,

Sechler, and Roberts did not impress me as reliable witnesses.

Accordingly, insofar as the testimony of Hall, Tate, and the

Wisemans conflicts with the testimony of Conlee, Sechler,

and Roberts, I am persuaded here that the testimony of the

former witnesses represents a more complete and reliable

account of the pertinent sequence of events.

Discussion

Section 7 of the National Labor Relations Act

guarantees employees the "right to self-organization, to form,

join or assist labor organizations, to bargain collectively

A27

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

through representatives of their own choosing, and to engage

in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection,” as well as the

right "to refrain from any or all such activities." Section

8(a)(1) of the Act makes it an unfair labor practice for an

employer "to interfere with, restrain or coerce employees in

the exercise of" their Section 7 rights. The "test" of

"interference, restraint and coercion under Section 8(a)(1) of

the Act does not turn [*18] on the employer's motive or on

whether the coercion succeeded or failed . . . the test is

whether the employer engaged in conduct, which it may

reasonably be said, tends to interfere with the free exercise of

employee rights under the Act." See NLRB v. Illinois Tool

Works, 153 F.2d 811, 814 (7th Cir. 1946). And, Section

8(a)(3) of the Act, in turn, forbids employer "discrimination

in regard to hire or tenure of employment or any term or

condition of employment to encourage or discourage

membership in any labor organization... ."

Further, as restated in Peter Vitalie Co., 313 NLRB

971, 975 (1994),

When employees join to present a grievance

concerning wages, hours or working conditions to their

employer, their action is concerted. . . . Unless the concerted

action is shown to have been conducted in an abusive manner,

it is protected under Section 7 of the Act. . . . The employer

must have known, or believed, that the action was part of

group action or on behalf of a group of employees. . . . When

such protected concerted activity is a moving reason for an

employer's discipline imposed on an employee, then that

adverse action violates Section 8(a)(1) of the Act, unless the

[*19] employer . . . demonstrates that it would have taken

A28

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

the same action notwithstanding the protected activity.

[Citations omitted. ]

And, an employer runs afoul of Sections 8(a)(1) and (3) of the

Act by discriminatorily discharging employees "for filing

grievances" with a union and "teliing [an employee] that he

was discharged for filing a grievance." See Black Magic

Resources, 312 NLRB 667 (1993).

In the instant case, employees Hall, Tate, and Rex and

Jean Ann Wiseman, members of the Union, discussed among

themselves their Employer's "pay arrangement." They felt

that this "pay arrangement" was "unfair." They then sought

the Union's assistance and were advised to file a "grievance."

They signed such a "grievance" on March 4, 1994. On the

following day, March 5, employee Hall informed Manager

Sechler that the employees have "gotten together" and are

"going to file a grievance with the Union" protesting the

Employer's “pay arrangement." Sechler coercively stated to

Hall: "Are you prepared to take the consequences," that is,

being fired by the Employer. They nevertheless filed their

"grievance" on March 7. The Employer received a copy of

the "grievance on that same day and, as Company [*20}

President Conlee acknowledged, was "shock[ed]" and

"stunned." On the following day, March 8, the Employer

summarily fired the employees.

The Employer claimed in his March 8 letter to the

employees that "it is obvious that you have terminated your

relationship with me." As the credible evidence of record

shows, the employees had not "terminated" their employment

and they repeatedly had so advised the Employer both orally

A29

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

and in writing. The Employer nevertheless insisted that they

had "terminated" their employment and had been, according

to Conlee, "permanently replaced." Elsewhere, Manager

Roberts acknowledged that only three "replacements" were

"hired for the weekend" and Manager Sechler acknowledged

that they were not "permanent replacements." Indeed, the

Employer, in summarily concluding that the employees had

"terminated" their employment, had made no effort to contact

the employees and verify that this in fact was the case.

I find and conclude that the Employer, angered and

annoyed because his employees had sought union assistance

and filed a "grievance" protesting "unfair" wages, retaliated

against the employees by discharging them, in violation of

Section 8(a)(1) and (3) of [*21] the Act. I reject as

incredible and pretextual the Employer's claim that these

employees had in fact led the Employer to believe that they

had quit. The credible evidence of record does not support

this and related assertions advanced in justification of the

Employer's plainly coercive and discriminatory conduct.

Moreover, although it is true that the Employer in fact had no

contractual relationship with the Union, the employees,

relying on advice from the Union, were acting reasonably and

in good faith when they filed with the Union their "grievance"

protesting their "unfair" wages. In short, this record does not

support any claim that the employees were resorting to

unprotected conduct in support of their complaints over their

wages. Further, I find and conclude that Manager Sechler's

admonition to employee Hall, as quoted above, was clearly a

threat of retaliation for engaging in Union and protected

concerted activity, in violation of Section 8(a)(1) of the Act.

In this case, it was a threat made good.

A30

q

q

Es

a

oh NT MR LE ATE BP. TID ABO Rh

John Conlee Enterprises, Inc..,

317 N.L.R.B. 1082 (1995)

CONCLUSIONS OF LAW

1. Respondent Employer is engaged in commerce and

the Union is a labor organization as alleged.

2. Respondent Employer violated Section 8(a)(1) of the

Act by threatening [*22] an employee with discharge

because the employee had filed a grievance with the Union.

3. Respondent Employer violated Section 8(a)(1) and

(3) of the Act by discharging employees William D. Hall Sr.,

Rex Wiseman, Jean Ann Wiseman, and Lonney Tate because

they nad supported the Union and engaged in protected

concerted activities.

4. The unfair labor practices found above affect

commerce as alleged.

THE REMEDY

To remedy the unfair labor practices found above,

Respondent Employer will be directed to cease and desist

from engaging in such conduct or in like and related conduct

and to post the attached notice. Affirmatively, Respondent

Employer will be directed to offer the discriminatorily

discharged employees reinstatement and make them whole for

any loss of earnings and other benefits, computed on a

quarterly basis from date of discharge to date of proper offer

of reinstatement, less any net interim earnings, as prescribed

in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest

as computed in New Horizons for the Retarded, 283 NLRB

1173 (1987). Respondent Employer will also be directed to

A31

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

preserve and make available to the Board or its agents on

request all payroll records [*23] and reports and all other

records necessary to determine backpay and compliance under

the terms of this decision. And, Respondent Employer will be

directed to remove from its files any references to the above

discriminatory discharges and notify the discriminatees in

writing that this has been done and that evidence of these

discriminatory actions will not be used as a basis for future

personnel action against them, in accordance with Sterling

Sugars, 261 NLRB 472 (1982).

On these findings of fact and conclusions of law and

on the entire record, I issue the following recommended n5

n5 If no exceptions are filed as provided by Sec.

102.46 of the Board's Rules and Regulations, the findings,

conclusions, and recommended Order shall, as provided in

Sec. 102.48 of the Rules, be adopted by the Board and all

objections to them shall be deemed waived for all purposes.

ORDER

The Respondent Employer, John Conlee Enterprises,

Inc., Nashville, Tennessee, its officers, agents, successors,

and assigns, shall

1. Cease and desist from

(a) Threatening an employee with discharge because

the employee had filed a grievance with the Union, Local

257, American Federation of Musicians.

A32

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

(b) Discriminatorily [*24] discharging employees

because they supported the Union and engaged in protected

concerted activities.

(c) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative action necessary to

effectuate the purposes and policies of the Act.

(a) Offer employees William D. Hall Sr., Rex

Wiseman, Jean Ann Wiseman, and Lonney Tate immediate

and full reinstatement to their former jobs or, if those jobs no

longer exist, to substantially equivalent positions, without

prejudice to their seniority or any other rights or privileges

previously enjoyed, and make them whole for any loss of

earnings and other benefits suffered as a result of the

discrimination against them, with interest, in the manner set

forth in the remedy section of the decision.

(b) Remove from its files any reference to the unlawful

discharges of employees William D. Hall Sr., Rex Wiseman,

Jean Ann Wiseman, and Lonney Tate and notify the

discriminatees in writing that this has been done and that

evidence of these discriminatory actions will not be used as a

basis for future personnel action against them.

(c) Preserve and, on request, make available to the

Board or its agents for examination and copying, all payroll

records, social security payment records, timecards, personnel

records and reports, and all other records necessary to analyze

A33

John Conlee Enterprises, Inc..,

317 N.L.R.B. 1082 (1995)

the amount of backpay due under the terms of this Order.

(d) Post at its facility copies of the attached notice

marked "Appendix." n6 Copies of the notice, on forms

provided by the Regional Director for Region 26, 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.

n6 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 National 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."

(e) Notify the Regional Director in [*26] writing

within 20 days from the date of this Order what steps the

Respondent has taken to comply.

Dated, Washington, D.C., March 24, 1995.

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD An Agency of the United States

Government

A34

SLAB AA Nae Sea ehh UA ELLER LOLI EB CDI et FEA LEC AC De RIES

AIRE td alt

Seabed

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

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 representatives of their

own choice

To act together for other mutual aid or protection

To choose not to engage in any of these protected

concerted activities.

WE WILL NOT threaten our employees with

discharge because they have filed a grievance with the Union,

Local 257, American Federation of Musicians.

WE WILL NOT discriminatorily discharge our

employees because they have supported the Union and

engaged in protected concerted activities.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce our employees in the

exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL offer employees William D. Hall Sr.,

A35

John Conlee Enterprises, Inc.,

317 N.L.R.B. 1082 (1995)

[*27] Rex Wiseman, Jean Ann Wiseman, and Lonney Tate

immediate and full reinstatement to their former jobs or, if

those jobs no longer exist, to substantially equivalent

positions, without prejudice to their seniority or any other

rights or privileges previously enjoyed, and make them whole

for any loss of earnings and other benefits suffered as a result

of the discrimination against them, with interest, in the

manner set forth in the remedy section of the decision.

WE WILL remove from our files any reference to the

unlawful discharges of employees William D. Hall Sr., Rex

Wiseman, Jean Ann Wiseman, and Lonney Tate and notify

the discriminatees in writing that this has been done and that

evidence of these discriminatory actions will not be used as a

basis for future personnel action against them.

WE WILL preserve and, on request, make available

to the Board or its agents for examination and copying, 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.

JOHN CONLEE ENTERPRISES, INC.

A36

ee See rs hoe

;

|

APPENDIX D

CASE NO. 96-5691

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

V.

JOHN CONLEE ENTERPRISES, INC.,

Respondent

PETITION OF RESPONDENT

FOR REHEARING WITH SUGGESTION

FOR REHEARING EN BANC

PHILIP K. LYON

Jack, Lyon & Jones, P.A.

11 Music Circle South, Ste. 202

Nashville, TN 37203

(615) 259-4664

Attorney for Respondent

John Conlee Enterprises, Inc.

A37

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

REQUIRED STATEMENT FOR.

REHEARING EN BANC

I express a belief, based on a reasoned and studied

professional judgment, that this appeal involves a question of

exceptional importance regarding a litigant’s right, pursuant

to the United States Constitution as well as the National Labor

Relations Act and the general principles governing our entire

system of jurisprudence, to a fair and impartial hearing before

a judge who is not predisposed to favor one side over the

other.

Philip K. Lyon

Attorney for Respondent

John Conlee Enterprises, Inc.

A38

4

*

>

>

t

= 4

Ss

4

t

4

>

3

="

4

Pa

§

@

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

RESPONDENT'S PETITION FOR REHEARING

John Conlee Enterprises, Inc. respectfully petitions the

Court for a rehearing under Fed. R. App. P. 40 on the issue

of whether it received a fair hearing before an unbiased

Administrative Law Judge of the National Labor Relations

Board. Respondent believes that this Court committed a

grievous error of law as more fully discussed in the following

Argument. Respondent further suggests the appropriateness

of a rehearing en banc pursuant to Fed. R. App. P. 35 on the

issue involved in this Petition.

Respectfully submitted,

/s/

Philip K. Lyon

Counsel for John Conlee Enterprises, Inc.

A39

NLRB vy. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

ARGUMENT

The issue involved in the Petition For Rehearing with

Suggestion for Rehearing En Banc is neither complicated nor

difficult. However, it is just as important as it is non-

complicated and just as significant as it is non-difficult.

While Respondent disagrees with the overall findings of the

three-judge panel, NLRB v, John Conlee Enterprises, Inc.,

Case No. 96-5691, (August 28, 1997) it has concluded that

the issue raised here alone satisfies the requirements of Fed.

R. App. P. 35 and 40, as well as Sixth Circuit Local Rule 14.

A copy of the Slip Opinion is attached hereto as Addendum

RH-1 for the Court’s convenience.

The paramount issue here is whether Respondent

received a fair and impartial hearing before the NLRB

Administrative Law Judge (ALJ). The three-judge panel held

that the issue was not properly before the Court and even if it

were, the argument lacked merit. Slip Opinion at p.6.

Respondent respectfully submits that the three judge panel

was wrong on both counts.

Surely the principle that a litigant is entitled to a fair

hearing before an impartial judge is so axiomatic that no

citation of authority is needed nor is it necessary to raise the

issue in graphic detail. Section 10(e) of the National Labor

Relations Act requires an issue to have been raised before the

NLRB in order for an appellate court to be able to review the

contention, but there is also an exception to this rule. The

failure or neglect shall be excused because of extraordinary

circumstances. See p.6 of the Slip Opinion. Certainly

extraordinary circumstances exist in this case even if the issue

A40

a al

fo vai elite AAS cae sah

|

|

|

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

was not raised below, which point Respondent disputes.

Respondent submits that the issue was clearly raised

below and would direct the Court’s attention to pp. 2-3 of its

Reply Brief filed on November 25, 1996. In an effort to

avoid redundancy, those arguments are not repeated here.

However, Respondent would also direct the Court’s attention

to its Brief in Support of Exceptions to Administrative Law

Judge’s Decision found at pp. 21-33 of the Joint Appendix

filed herein on December 2, 1996. More specifically, we

would ask the Court to review Joint Appendix p.27 where it

states, “Given the undisputed evidence, it is clear that the ALJ

made the “temporary” finding only because it was his goal to

reject all evidence submitted even if it were relevant and

uncontroverted.” (emphasis in the original) and p. 28 where

it states, “The ALJ admitted this statement (citation omitted)

but as he did with most of Respondent’s evidence, ignored its

significance.” Respondent contends that these quotes along

with the previously quoted language (Reply Brief p.2) clearly

reflect that this issue was sufficiently raised before the NLRB

to satisfy the requirements of § 10(e) of the NLRA. As stated

in the Reply Brief (p. 2) “Conlee Enterprises raised the issue

of ALJ Itkin’s bias before the Board and further stated that his

decision was an obviously one-sided Opinion where he

credited 100% of the evidence submitted by the Charging

Parties and either discredited or ignored Respondent’s

evidence. (Brief in Support of Exceptions to Administrative

Law Judge’s Decision, 05/ 18/95)” (quotes and citations in the

original). It certainly should have been clear to the NLRB

that Respondent was claiming that it did not get a fair hearing

before ALJ Itkin. The NLRB rejected this contention just as

it did Respondent’s other claims in a pro-forma Decision and

A4l

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

Order which probably took five minutes to prepare and takes

only thirty seconds to read. Joint Appendix p.12. Further,

when this very issue was graphically raised concerning the

identical ALJ, the NLRB dismissed it in a single footnote as

totally unfounded. Joy Recovery Technology Corp., 320

NLRB No. 45 FN. 2 (12/20/95). A copy of this Decision and

Order is attached hereto as Addendum RH-2 for the Court’s

convenience. Therefore, the issue was raised before the

NLRB below, but even if it was not clearly raised, the failure

is insignificant given the NLRB’s cavalier attitude towards

claims of ALJ bias. Finally, such an issue should be capable

of being raised at the earliest practical point, which it was in

this case. Certainly counsel for Respondent is not required to

“check out” the ALJ in each case before his/her Decision is

rendered to determine if there appears to be bias. If this is the

rule, then one would suspect that the NLRB process is

unconstitutional in application. Such just cannot be the law in

a free society as is ours. (For further argument on this point,

see Respondent’s Reply Brief pp. 2-9).

Moving to the merits of our claim of bias, the statistics

presented reflect overwhelming evidence of bias. The three

judge panel found that the statistical analysis did not place the

issue before the Court, but they were mistaken. The analysis

attached as Addendum R-1 to Respondent’s Brief filed

September 30, 1996 (pp.1-22 of R-1) was prepared 100%

from public records and published NLRB Decisions and

constituted simply a citation, discussion and analysis of NLRB

cases. Certainly this approach is neither novel nor unusual.

(See also Respondent’s Reply Brief pp. 2-3).

The statistical analysis itself is incredible and almost

A42

a hs

seb Wile pean 2 ARETE ERA Ra SARA ARLE NP

woh ootet uhh

De tke ee Sa i oe tom A eal i ae

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

unbelievable. If such numbers were found to exist in a class

action Title VII case, the EEOC would be looking to see if

there were some way it could impose criminal liability upon

the employer. As stated above, the identical issue involving

the same ALJ was involved in |

Corp, and is currently pending before the Seventh Circuit in

NLRB v. Joy Recovery Technology Corp., Case No. 97-

2001. While our Brief only discussed the statistical results

based on a 50-50 assumption (see Brief, pp. 8-9 and

Addendum R-2) the results are no less staggering when you

refine the analysis to include assumptions of 60-40, 70-30, 80-

20 and even 90-10. In each instance, the familiar 2-3

standard deviations standard from Hazelwood School District

v. United States, 433 U.S. 299, 309 n.14 (1977) is met. If

this standard requires that unlawful discrimination be

suspected in the employment setting, how in the world can

you ignore the suspicion of bias when an ALJ is involved?

For the Court’s convenience, a statistical analysis for each of

the above assumptions is attached as Addendum RH-3.

In conclusion, Addendum R-1 and R-2 to

Respondent’s Brief, included in the Record, is a study of 113

of ALJ Itkin’s CA and CA/RC opinions issued between 1973

and 1995. Of the witnesses who testified in those

proceedings, 532 of 572 (93%) General Counsel’s witnesses

were credited. Statistically, if we assume a probability of .5

in crediting witnesses, then one would expect only 286 of 572

General Counsel’s witnesses would be credited. The

observed number of 532 is 20.6 stan 14 deviations from the

expected number, or a probability of 1 out of an

incomprehensible number (2 followed by 110 zeros). If we

assume a probability of .6 (that is an expectation that General

A43

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

Counsel’s witnesses are going to be telling the truth 60% of

the time) the observed number is 16.1 standard deviations

from the expected number. At .7, the number of standard

deviations is 12, and at .8, the number of standard deviations

is 7.8. Ata probability expectation of .9 the probability of

crediting 532 of 572 witnesses is still 1 out of 130 or 2.4

standard deviations from the expected norm. Addendum RH-

3 to this Petition for Rehearing details these findings.

In civil rights cases, the Supreme Court has held that

differences this large are sufficiently suspect as to give rise to

an inference of discrimination. See, e.g., Castenada v.

Partida, 430 U. S. 482 (1977) (a difference of 12 standard

deviations between expected and observed distributions made

out a prima facie case of discrimination in jury selection), and

Hazelwood School District v, United States, 433 U.S. 299,

309 n.14 (1977) (unlawful discrimination may be suspected

“if the difference between the expected value and the

observed number is ‘greater than two or three standard

deviations’”). In this case, the difference between observed

and expected values is less than three standard deviations only

if one assumes that the General Counsel’s witnesses tell the

truth 90% of the time and the Respondent’s witnesses almost

always lie. Even if the assumption is that the General

Counsel’s witnesses tell the truth 70% of the time, the ALJ’s

credibility determination history still shows a difference of 12

standard deviations, the same number of standard deviations

found to establish a prima facie case of discrimination in

Castenada.

While these statistics may not, in and of themselves,

prove bias, see, ¢.g., Fieldcrest Cannon, Inc, v. NLRB, 97

Ass

5 in ll lillie NATE ea PA a

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

F.3d 65, 69 (4* Cir. 1996), they render the ALJ's credibility

determinations suspect and thus not entitled to the usual

deference.

In this case Respondent submits that this Court should

review this case en banc and thereafter reverse the three judge

panel’s decision and deny enforcement to the NLRB’s Order.

In the alternative, the matter should be remanded to the NLRB

and a new hearing ordered before a fair and impartial

Administrative Law Judge. However, if this Court thinks it

appropriate, it might also remand the issue of Judge Itkins’

impartiality to the NLRB for a full analysis, which the NLRB

has refused to conduct to date. Any other result will trample

upon Respondent’s right to due process of law. Further, any

other result will leave an intolerable taint upon our system of

jurisprudence and undermine public confitence in our system

of justice.

Respectfully submitted,

JOHN CONLEE ENTERPRISES, INC.

By:

Philip K. Lyon

JACK, LYON & JONES, P.A.

11 Music Circle South, Ste. 202

Nashville, TN 37203

(615) 259-4664

Counsel for John Conlee Enterprises, Inc.

A45

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

STUDY OF ALJ ITKIN’S WITNESS CREDIBILITY

EVALUATIONS, 1973 - 1995

The attached analysis of ALJ Itkin's witness credibility

evaluations was conducted by Daniel V. Kinsella and Donald

W. Anderson, Burditt & Radzius, Chartered, 333 West

Wacker Drive, Suite 2600, Chicago, Illinois 60606. Mr.

Kinsella and Mr. Anderson analyzed 113 of ALJ Itkin's CA

and CA/RC opinions between 1973 and 1995.

The cases in the attached table were selected by

searching the Lexis” database for all NLRB decisions by ALJ

Itkin, then eliminating duplicate Board decisions and all cases

other than CA or CA/RC. Only CA or CA/RC decisions were

analyzed in order to limit the study to reasonably analogous

factual situations. The time period covered by the analysis

reflects the time period covered by the database at the time

this analysis was conducted.

Best efforts were used to include all relevant decisions

located by the search. However, no representations or

guarantees are made other than that best efforts were used in

performing this analysis. In cases where a witness was

credited in one part of the decision, but not credited in

another, the witness was credited for purposes of this

analysis.

905 witnesses from 113 cases were analyzed. In each

case, the names of the witness, their affiliation to the parties,

and whether the witness was credited is noted in the table. Out

of 905 witnesses, 93% (532/572) of the NLRB witnesses were

A46

NLRB v. John Conlee Enterprises, Inc.

Petition for Rehearing En Banc

Ae eet lame

credited, while 21% (69/333) of the employers witnesses were

credited. ALJ Itkin is thus 4.6 times more likely to credit

NLRB witnesses than employer witnesses.

A47

APPENDIX E

TABLE OF ADMINISTRATIVE LAW JUDGE ITKIN

WITNESS CREDIBILITY EVALUATIONS, 1973 - 1995

Wiseman, E x |

JA

Tate E x

Conlee Cc X

| Sechler Cc x |

| Roberts = X |

2. Park | Singleton E X |

Manor

Nursing

Home, Inc

[1995

NLRB

Lexis 557]

| Schuster E X |

Hall E X

A48

3. Golden

Torti E X |

Riddle 7 X 4

Diekemper E X

Link E X

O'Laughli E X

n

McGlynn E X

Riesenbec S X

k

Smelcer C X

Elliot Cc X

Deivert E X

McCormic

k Dray

Lines, Inc.

NLRB No

Scott E X

Montgome E X

ry

| Chilson E X

1 Webb . X

A49

i Wanamker E 7

Tunini E

Weinzieri E

i Furlong Cc X

7. T&J Dorgan ia

Container

Systems,

Inc.

[316

NLRB No.

120]

Cruso E |

Zawado- E

wicz

Kelling E

Melvin E

| Manco E

A50

~ionitalin Baas ane

| 8. The Davenport X

| Lane

} Construc-

| tion Co.,

} et al

[1993

NLRB

| Lexis 871]

| Jenkins E X

Traylor E X

Hall e X “

Rogers E X

L'Heureux E X 4

Burdette » X

White, J C x |

White, K Cc X :

Givens C X

Belcher . X

Smart c X

Carter © X

Warner * X

PARTY

C

Allen C X

Price = X

Wilson > X

Simpson E X

Parrish Cc X

Merriman E

McGraw E

Pack E

10. Tucker E X

| George V

| Lynett, et

| al.

| [1994

i NLRB

Lexis 234]

Gallagher E X |

Marion c

11. U.S. Campos E X

Service

Industries,

Inc.

[1995

NLRB

Lexis 114]

Flores E X

Hernandez E X

Diaz, M E X

Saravia E X

Treminio E X

Barrero E X

A52

Diaz, R

eoM Rood ReoR ferk Rook Rese Bcok bes)

PS | PS |S | OS | OS | OS | OS | OS

mao

> | DS | OS | OS | OS | DS | DS | OS | OS | OS | OS | OS | OS

MIAINIATALAIALALATALAQALA[ASAT™

Cavaliere

A53

13. Ham E X

Brother

Industries,

Inc.

[314

NLRB No.

198]

Nash

Carlisle

Booker

Harkness

:

-—

:

|

PS | PS | PS | OS LS

as

Gilley

Matsumot

0

O'Donnell

Pannell

Ingle

Jacobson

Neal

Burchett

Morris

Swords

Farley

Sowell

Botkin

Quinton

QOH mimim i mim

~<

ALQALQALATATALAILAIAIATAIN

vad Lad Lad Led God Ged Ged Gad Get Cet Gel be.

:

A54

ww Markusic E X

1 Pollution

Control

1 Industries

of Indiana,

| et al.

[316

| NLRB No.

| 85)

| Peterson E X |

Aldaz E X

Cadena E X

Henderson E X

Brooks E X

Prunski Cc X

Campbell * X

Newell . X

Blanken- X

ship

Johnny e X

15. Presley E X

Alumni

Hotel

Corp

{311

NLRB No

83]

Crawford E X

Reed E X

Adam E X

AS55

CASE

NAME

16.

Bardaville

Electric,

Inc.

[309

NLRB No.

43]

Fashbaugh

Weber

Bardaville

‘@)

17. New

England

Telephone

Howell

Farina

Deleva

‘o)

18. Liquid

Carriers

Corp.

[1993

NLRB

Lexis 441]

Cardillo

Pentima

2)

Cornette

Ross

ies)

Head

A56

Ser wa

NAME CREDIT

i 20. Albert E X

Cannon

Boiler

Works,

} Inc.

| [1990

NLRB

| Lexis 778]

| Bowling Il Cc X

Shelley C X

Brown . X

Ciccociop C xX

po

| Roddy C X

| 21. Fox E xX

| Teledyne

| Industries,

1 Inc.

| [1990

i NLRB

Lexis 638]

| Cummings . X

| 22. Saunders E X

| Maryland

1 Millwork

} Installers

| [1991

NLRB

| Lexis 515]

| Stanalonis E xX

Gibson E X

Bush E X

Vahtras E X

CASE | WITNESS | PARTY | CREDIT | _ DIS-

NAME CREDIT

Rapier E x

Caruso Cc x

Mueller . X

Green Cc x

Spears Cc X

23. Bartosh E X

Cumber-

land

Farms,

Inc.

P91

NLRB

Lexis

1318]

Priest E x

Mariano E x

Morris E x

Gordon Cc x

Cavaco Cc X

Macrides Cc x

Sweeney Cc xX

24. Gordon E x

Trimtex

hare

Mills, Inc.

[1991

NLRB

Lexis 932]

Daniels E x

Grinberger C X

AS8

eee, itl alll hana,

CASE | WITNESS | PARTY | CREDIT | _ DIS-

NAME CREDIT

25. Stein E X

R.G.N.

Enterprises

, Inc

[1991

NLRB

Lexis 494]

Dekoster E xX

Gerstein & X

Wojcik b X

Williams a X

Naso Cc X

Moore c xX

Milkowich | C Xx

Miller Cc X

26. Holland Cc X

Paramount

Liquor

Company

[307

NLRB No.

110)

Rudolph Cc X

Reichhardt | C X

Van Hoose E xX

Sanders E xX

Welch E x

AS59

CASE

NAME

27. F.W.

Woolworth

Co.

[1991

NLRB

Lexis 719]

28.

Kenosha

Auto

Transport

Corp.

[302

NLRB No.

148]

OLOLOLOLO lM mi imimim

QO

~

A60

CASE | WITNESS | PARTY | CREDIT]! _ DIS-

NAME CREDIT

29. Morrice E X

Amperage

Electric,

Inc.

[301

NLRB No

2)

Cooper E X

Presley t x

Beamish E xX

Bond E x

Vyskocil a X

Andres E x

Burman E xX

Bower E xX

Boyd b x

Newberry Cc X

Telesz, K . X

Telesz, L S x :

Zimmer- Cc X

man

Harris Cc X

30. Godlewski E X

Keystone

Casing

Supply,

Inc.

[196

NLRB No

138)

Maust a Xx |

Petrucci E X i

Aél

CASE WITNESS | PARTY | CREDIT | _ DIS-

NAME CREDIT

Sartore Cc X

31. Limsen- E X

Matlack, bigler

Inc. and

Local 6

[278

NLRB No

36]

Reph E X

Bear E X

Rice E X

Flamisch E X

32. A&W | DeSantis E X

Foods, Inc

& Local

880

[276

NLRB No

20)

Snow * X

Calassi . xX

33. Trammel E X

Pennsy

Supply,

Inc.

[295

NLRB No

37}

Allen E xX

Brugger Cc X

Haskins ” X

Eshleman = xX

A62

CASE WITNESS | PARTY | CREDIT DIS-

NAME CREDIT

34. Phalen E xX

Maben

Energy

Corp.

[295

NLRB No.

23)

Accord E xX

Wise Cc », 4

35. Taylor E x

Profession-

al Porter &

Window

Cleaning

Co.

[275

NLRB No.

4)

Levy Cc X

Joynes Cc X

Swartz Cc xX

McQueen E X

36. Hernandez E xX

Capital

Rubber &

Specialty

Co.

[201

NLRB No.

95)

Bridges E X

Sansone E Xx

Johnson E xX

A63

CASE WITNESS | PARTY | CREDIT | _ DIS-

NAME CREDIT

Cooper E X

Abrams E xX

Jones E x

Tucker E xX

Drewery E X

Montague E X

Pedes- E x

cleaux

Scholl Cc », 4

37. TCC Carr E X

Center

Companies

, Inc.

[275

NLRB No

85]

Dulmage E xX

Hawes Cc xX

Eiseli Cc », 4

Latour = xX

MacDonal Cc xX

d

Klein- xX

brook

Handley E X

38. Brassil E xX

Nabisco

Brands,

Inc.

[286

NLRB No

136]

Aé4

ees

39. Five

M Coal

Corp.

{281

NLRB No.

502)

MALALALAIAIA Mmm

Stevenson

Charles

Adkins

Casey, M

Casey, C

Henderson

at tad Cad Lad Lad Le

Blanken-

ship

QO} ) Mm) mim im) m

Meadows,

B

Meadows,

J

Hilton, J

Hilton, R

Smith

A65

CASE

| NAME CREDIT

| 40. O'Briant c X

| Georgia

Pacific

| Corp.

| (281

1 NLRB No.

| 2]

Purifoy . X

Weaver . X

Foster . X

Winstead te X

Doolittle E X

I Hamm E X

Coleman E X

Prince E X

41. T.E. Morrill [ X

Elevator

Corp. of

Conn.

[291 NIRB

No. 151]

Euell Cc X

DeRosa E X

42. Sea Russo E X

Bay Home

for Adults

(253

NLRB No

68]

Blisko Cc X

A66

A67

WITNESS

Grossinger

} Garrett

| Hallroad

Car &

| Equipment

- | (275

| NLRB No.

| 151)

5

:

°

5

APQALASLASASA [Mmm

rat Cat Cat Cet Led Ge.

A68

Nelson

Nicholson

Slabach

Mullins

Parks

Maxwell

A69

: Sk. &.

Agnes

| Medical

| Center

James E X

Mobley E X

Chambers E X

Feulner E X

Feldman E X

DiDomen- E X

ico

Holmes X

Colazzo X

Hilbert X

| PS | PS | OS | OS |

—

5

ALONLALAS[ASA Mimim

A70

CASE | WITNESS | PARTY | CREDIT | _ DIS-

NAME CREDIT

52. Shackles E », 4

Crestwood

Auto

Supply Co

[240

NLRB No

127]

Eldridge E X

Cantrell E X

| Buckley E X

53. Moore, O. E X

Virginia

| Holmes

| Mfg. of

Del.

[239

| NLRB No.

| 123]

| Moore, E X

W.

Decker E X

Farrone E X

Cronic E X

Lathbury E », 4

Absher E X

Toomey E X

Thompson S X

54. K Falk E xX

Mart Corp

[238

NLRB No

166)

A7l

56. Kings

Terrace

Nursing

Home

227 NLRB

No. 47]

Rizzo

57. Allied

Products

Corp.

{218

NLRB No.

188]

Hensge

Veil

OQ

Moore

DeMott

A72

CASE WITNESS | PARTY | CREDIT ~-DIS-

NAME CREDIT

58. Won E X

Diebold,

Inc.

[210

NLRB No

138]

Palo ta X

59. Bailey E X

Indianapoli

s Power &

Light Co

[273

i NLRB No.

| 211)

| Presly E X

Lucas E X

Thompson E X

Richards E X

King E X

McGraw Cc X

Fogleman . X

| Summer E X

60. Casala E X

| Culmtech

Ltd &

George

| Boston

[283

NLRB No

25)

Pachucki E X

Sr.

A73

WITNESS

Pachucki

Jr.

Gostinski

Ward

~<

Boston's

Bianco

Small

Troup

Gorcenski

mS | PS | OS |

) 61.

| Mediter-

| ranean

| Diner, Inc.

| [279

| NLRB No.

Fairfield

MOQAOLAAlmimim

Nicholas Cc X

Vlastaris “ X

62. Magic | Foust Cc X

A74

CREDIT

oS

CREDIT |

7

A75

CASE | WITNESS | PARTY | CREDIT] _ DIS-

NAME CREDIT

66. Wilson E X

Cleveland

Express,

Inc.

[222

NLRB No.

63]

Lane E X

Tate E X

| Bryant C X

67. Miner | Guida Cc X

| Industries,

| Inc.

[285

| NLRB No.

| 36)

| Ashcroft C X

| 68. Lerten Cc X

American

Parts

System

[232

NLRB No

3

| Lauver e xX

Smithson oy X

Hunsberg- E X

er

Thomas E X

Shughart E X

A76

WITNESS

Gambill

Rose

Hoover

ad

Angel

Kinder

Sanders

Hoffman

Sloan

Savage

Hammer

Hurley

Hembree

Franks

Blair

ALALALALALALALAIAIAI msl

val Cad Lad Cad Lad Cad Get Gell Gel Ge:

A77

Schad E

Bouchard E

Murphy C X

Clark Cc X

Whitney C X

Mitchell [ X

72. Essex | Bell E

Internation

al, Inc.

[213

NLRB No

47]

Bebout E

Davis E

Doherty os X

Schock . X

Olson E X

Hale E X

73. Felsa | Manrique E

Knitting

Mills, Inc.

[208

NLRB No

79)

Belevan E |

A78

Peer se ae

75. Allis

Pat ad Cad Ca

Pad Cad Cad Cad Ca

=

E

mialalalalajalalaja

S

tr

on

>

4

S

S

tT)

>

A79

:

2

HM MiMi mMimimimimimimin

ad Lad Lad Cad Cad Gad Gad Ged bet Ct tL

od Fad bet ted to

OVO mM iraimimios

A80

CASE WITNESS | PARTY | CREDIT DIS-

NAME CREDIT

77. Ford Siriani E X

Motor

Company

[251

NLRB No.

66]

West E X

Keller C X

Woold- Cc X

ridge

Dudek ; X

Luyckx Cc X

Pellegrini Cc X

McCall > X

Nietubicz > X

Brady Cc X

78. Intl. Glazier E X

Union of

Operating

(255

NLRB No.

600)

Harrah E X

Hayhurst E X

Holt E X

Handley Cc X

Maddox “ X

Pruett . X

Barnett E X

A81

81.

Standard

Materials,

Inc.

[286

NLRB No.

52]

Allen E X

Beard E X

Cousin E X

Crawford E X

Edwards E X

Favre E X

Hart E X

Hinton E X

Jenkins C E X |

A82

CASE

NAME

:

2

CREDIT

DIS-

CREDIT

82.

Western

Waste

Industries

[274

NLRB No.

35)

esBRcsBbcsBicoBiccR bes icsB besRicsE ies bes)

ad tad Cad Cad Cod Cod Lad Cad Ged Gad Ge:

rough

esBBesB hesB icsk beck ieok ics)

at tad Feod Cad bod Led Ces

Ingram

a

Orders

McGlash-

an

Armstrong

Brown

A83

CASE WITNESS | PARTY | CREDIT DIS-

NAME CREDIT

Rosinski ¢ X

83. Shank E X

Advanced

Mining

Group

[260

NLRB No

73)

Roudebush E X

Mikulan E X

Clawson E X

Jackson E X

Smith E X

Baker E X

Peterman E xX

Marsh E X

Lamar E X

Randolph E X

Black E X

Wannett E X

Radulo- E X

vich

Einstein Cc x

Cassidy Cc X

Rhoades Cc X |

84. J. Miller E X |

Medical |

Center

News, Inc

[263

NLRB No

139}

A8&4

WITNESS

CREDIT

Massey

X

McNeal

Saunders

Whitlock

E. Miller

Mica

86. Rich X

Continental | Strom

Distribut-

ing Co.

[256

NLRB No.

| 91]

| Davis E X

Roy Strom C X

Cooper Cc I

- Preston * |

Swachig — C |

A85

CASE | WITNESS | PARTY | CREDIT] _ DIS-

| NAME CREDIT

87. Wells | Votta E X

Fargo

Armored

Service

[270

NLRB No.

106]

R. Kelley E X

Relay E X

Mangan E xX

Petrie E X

Hurley E X

J. Kelley E X

Caputo E X

Maguire E X

Hughes ™ X

Gamber . X

Stratford is X

Isaacs C X

Prisciandr Cc X

Oo

88. Vin Ward X

James

Pi.stering

Co.

[226

NLRB No

26]

Smith Cc X

Fernandez » X

Wallace Cc Xx

Scrandra c X

A86

Wease

Carnes

Holcomb

Dodkin

Coggins

Taylor

Austin

Thornton,

S.

Mimi mim im) mim im

PS | PS |S |S LS |< Td

Thornton

Foster

Poltersdorf

Pappas, A.

mIaAIATO

CASE WITNESS | PARTY | CREDIT DIS-

NAME CREDIT

Pappas, E x

Ww.

Zahran E X

Sullivan E X

McManus xX

Fallon Cc X

92. Chee E X

Garrison

Valley

Center

[246

NLRB No

114]

Curtis E X

Morris E X

Thompson E X

Williams . xX

Shidmore Cc X

Campan- Cc xX

ella

93. Brown E X

Americana

Health

Care

[252

NLRB No

57]

Noaker E X

Reeves, E X

D.

Reeves, T. E X

i Dowdell E X

A88

CASE | WITNESS | PARTY | CREDIT | DIS- |

NAME CREDIT |

Schimer Cc X |

Covert . X

Bango Cc X

94. Nat'l Negron Cc X

Detective

Bureau

[204

NLRB No

7]

Beltran Cc X

Sierra E X

Franquiz E X

Quinones E X

Diaz E X

Bordewyk E X

Otero E X

Moldonad E X

Oo

95. Wise S X

Maben

Energy

Corp.

[295

NLRB No

23]

Phalen E X

Accord E x

A89

~ CASE | WITNESS | PARTY | CREDIT] DIS.

NAME CREDIT

96. Stairs Cc X

Electric

Energy,

Inc.

[296

NLRB No

76)

Hefner ™ X

| Giljum E X

| 97. Aldrich Cc X

| Murphy

Printi

Co., Inc.

[235

| NLRB No

90)

Homnick C X

Blank E X

Diglio E X

98. Boaz Amos E X

Spinning

Company

[206

NLRB No

62]

Garrard E X

Walker E X

Smith E X

~ Pierce E X

Gore Cc X

A90

Cc

Cc

E X

E X

b X

E X

E X

E X

Templeton & X

1 Mulligan Cc X |

1 Barranca Cc X J

| Downes Cc x |

| Burditt Cc X :

iz Burrus 7

A91

Brand Cc X

Hrehocik E X |

A92

Schmeling

Spielbauer

Douglas

Galbraith

O'Connor

Holcomb

Grimmer

od cad Cad Cad Cad tad Cod bet Ged Ged ot dL

at Cat tod Cad Ca

Pas

OOO SB a aiaisiniaiaiais isl elele lel

A93

CASE | WITNESS | PARTY | CREDIT | DIS.

NAME CREDIT

105. Keller E X

Brodart,

Inc.

[257

| NLRB No

77)

Metzger E X

Snodgrass C +

Lupacchin C X

o

106. Duke E X

Thurston

Motor

| Lines, Inc

[257

NLRB No

172]

Burney E X

Addis E X

Carter E X

Lovett E X

Holmes E an

Dyer ™ X

Holscher Cc X

Martin Cc X

107. Walsh E X

Faulkner

Hospital

[259

NLRB No.

§2]

Folker c X

A94

108.

A.J.R.

Coating

Division

[292

| NLRB No.

! 31)

PS | PS | PS |S | OS | Od | OS | | De

:

S

MA Mimimimnimimimimim|ala|alalalalalala

PS | PS | PS | OS |S | Od | Od | Dd | Dd | >< |

A95

CASE

| NAME

| 109.

1 Hochschild

Kohn

| NLRB No.

| Bull E X

| Sheleey E X

O'Connor E X

Gladden E X

Lieght E X

Pfeifer E xX

Morgan C X

| Horinka Cc X

| Warner Cc X

Suliga * X

110. Avambasic E X

Trumbull

Memorial

Hospital

[288

NLRB No

153]

Brandt E X

Benson E X

Callion E X

Campana E X

Bennet E X

| Grayer E X

Davis E X

Gardiner E X

A96

WITNESS

:

2

T CREDIT |

Greene

Austin

Butcher

Mcintyre

Sanders

Wilson

Thompson

Toriello

eoR BeoBbesRicoE bool cod Good fesk food bes

vad Lad Lad Lad Lad Ged Get Get Gad bes

eoR ResBhesR beod beod Lesk ieok ies

et tad Cod bad Fad bad bat Cos

esBbesBiesBicoB icoR icoR bes bes)

PS | PS | PS 1S LS LOS LO |

A97

eo BResB besk becR ies ies

vad Cad Lad Lad Cad Ce:

ad Cad Lad Cad Gad Gad Ged Cad Ged be:

HOA M A Mimi minininimioiniaiais iil

“ad Lad Lad ced Lad Ged Ged Ged Get be

A98

|

<

Jones

McVicker

Latham

DiGia-

cobbe

eoB ResB beoR beoB beck feo R fesk fey)

ad tad Cad Cad Ged Cad ed be:

Dodge

Heim

Howard

Harris

Gilliam

Borowik

Copen-

haver

eoBBesBicoBicoR col ieok ics

PS | PS | PS | OS |< LS Tx

Ullom

Chapman

Cove

Harris

Lenhart

Mickens

Gross

Simco

Schooley

fad Lad Lad Ged Ged Get Get bet be

Carlson

Kuppler

Johns

Smith

QOJASALNA/Alalainialsin

ad Cad Cad Fa

Seer eee Se

A99

Moderalli C X

Fabrizio C xX

Maloney Cc X

Gaskell C X

| McLean X

111. ACF | Rosko Cc X

Industries,

Inc.

[1992

NLRB

| Lexis 841]

112. Hayden E X

Horizon

| Foods, Inc.

[280

NLRB No.

127]

| Williams E X

Hibbler E X

Gersknow- E X

ski

Unason E X

Rice E X

Baldwin E X

Alexander E X

Rogers E X

Stricker . X

| Tadros Cc X

A100

WITNESS | PARTY | CREDIT DIS-

CREDIT

Mardula E X

Thrower E X

Barr E X _|

Miller E X

McVicker E X

Geisbrecht E X

Constant- E X

Al0l

APPENDIX F

Statistical Analysis

NLRB v. John Conlee Enterprises, Inc.

ALJ Itkin Witness Credibility Evaluations 1973-1995"

Case No. 96-5691

Actual Expected | Standard | Standard Probability Odds

Probability | number of | deviation | deviations of

of credits for | (for 572 from the 532 or more

Crediting | 572total | total norm if 532 | credits out

Witness witnesses | witnesses) | credits of 572 SN

observed =<

0.5 286 12.0 20.6 4.19E-111 1 out of

23850657283 103800000

00000000000000000000

00000000000000000000

00000000000000000000

00000000000000000000

00000000000

Homewood,

A.J. Duncan, Quality Control and Industrial Statistics, Fourth Edition, Richard D. Irwin, Inc.,

Illinois, 1974.

Actual Expected | Standard | Standard Probability Odds

Probability | number of | deviation | deviations of

of credits for | (for 572 from the 532 or more

Crediting | 572total | total norm if 532 | credits out

Witness witnesses | witnesses) | credits of 572

observed

0.6 343 11.7 16.1 7.73E-73 1 out of

12930097792995600000

00000000000000000000

00000000000000000000

00000000000000000000

0000000000000

0.7 400 11.0 12.0 3.45E-42 1 out of

28976965233235000000

00000000000000000000

0

0.8 458 9.6 7.8 2.61E-18 1 out of

38381744393 1269000

0.9 515 7.2 2.4 7.69E-63 1 out of 130

A103

Judge’s Probability

Probability of seeing

Odds of seeing 532/572 witnesses credited

of crediting 532/572 witnesses

witness credited

50/50 4.19E-111 1 out of

23850657283 1038000000000000000000000000

000000000000000000000000000000000000000

000000000000000000000000000 (essentially 2

followed by 110 zeros)

60/40 7.73E-73 1 out of

129300977929956000000000000000000000000

000000000000000000000000000000000

(essentially 1 followed by 72 zeros)

70/30 3.45E-42 1 out of

2897696523323 50000000000000000000000000

00 (essentially 3 followed by 41 zeros)

80/20 2.61E-18 1 out of 38381744393 1269000

(essentially 4 followed by 17 zeros)

90/10 7.69E-03 1 out of 130

A104

APPENDIX G

NATIONAL LABOR RELATIONS BOARD

CASEHANDLING MANUAL

(PART ONE)

UNFAIR LABOR PRACTICE PROCEEDINGS

ee * &

I have been given assurances by an agent of the

National Labor Relations Board that the affidavit will be

considered confidential by the United States Government and

will not be disclosed as long as the case remains open unless

it becomes necessary for the Government to produce the

affidavit in a formal proceeding. Upon the closing of this

case, the affidavit may be subject to disclosure only in

accordance with Agency policy.

10059.6 Translation/Certification of Affidavits Taken in

a Foreign Language: When an affidavit is taken in a foreign

language and the Regional Office has translated into English,

the translator should add the following certification at the end

of the affidavit:

I hereby certify that I am fluent in English and [insert

name of foreign language being translated] and that

the attached English language translationis an accurate

A105

NATIONAL LABOR RELATIONS BOARD

CASEHANDLING MANUAL, § 10060

translation of the attached [insert name of foreign

language that was translated] language original

affidavit.

Date [Type name of translator]

10060 Credibility: In the event of hearing, credibility

questions may be critical. In view of this, the following points

should be kept in mind.

On the basis of its investigation the Regional Office is

expected to resolve factual conflicts.

Often a factual conflict arises out of the misunderstanding of

the questions or out of the conclusionary nature of the

questions asked or the answers given. The repetition of

questions in different forms may help to resolve the conflict.

Emphasis should be placed on obtaining factual details rather

than the opinions and conclusions of the witnesses. Probing

into details otherwise deemed to be insubstantial may be

called for in order to determine whether there is a propensity

for a "careless" handling of detail.

Where a witness has been contradicted on a relavant fact since

he/she last gave testimony, he/she should be reinterviewed.

And, to the extent further reinterview of witnesses will help

to resolve the issues, they should be undertaken.

INVESTIGATION 10060-10064

Finally, in situations where factual issues are close, it may be

A106 ‘

NATIONAL LABOR RELATIONS BOARD

CASEHANDLING MANUAL, § 10060

appropriate to have a reinterview conducted by a second

Board agent (typically, an attorney assigned to the case).

It should be kept in mind that a witness' appearance and

behavior at the time of interview, the existence or

nonexistence of discrepancies irrelevant details, and even the

consistency of prior statements or the witness' general

reputation are only indicators. Nor does an unwillingness to

sign or to swear to the truth of a statement have significance;

except when related to the reasons for the refusal. The best

indications of truthfulness lie in the probabilities inherent in

a given story (as opposed to another story) viewed in the light

of the entire pattern of available evidence.

"In the infrequent case in which (a) applying all relevant

principles, the Region is unable to resolve credibility, and (b)

the resolution of the conflict means the difference between

dismissal and issuance of complaint, a complaint should be

issued. This is not to be construed, however, as permitting the

avoidance of the making of difficult decisions.

10062 Assignment of Attorney: A case may be assigned

to an attorney, in lieu of or in addition to an examiner, at the

very outset of the case where the complexity of the case (e.g.,

a CC or a CD case), the patency of legal problems at the

outset, or the availability of regional personnel indicates it.

Where a field examiner and an attorney are assigned to a case,

or whenever two or more Board agents are assigned to a case

or task. responsibility for progress should be specifically fixed

by the assigning supervisor or supervisors. In the absence of

notice to the contrary, responsibility for progress of a case

A107

NATIONAL LABOR RELATIONS BOARD

CASEHANDLING MANUAL, § 10060

assigned at its filing to a field examiner shall reside in the

examiner until the responsibility is specifically shifted.

While an attorney is assigned to a case but is not responsible

for progress, an attorney is the legal advisor and chief legal

consultant and will, when necessary, interview witnesses or

conduct other required investigation. While the field examiner

is assigned to a case but is not responsible for progress, the

field examiner will be available for any necessary

investigative steps,

10064 Amendments to Charge

A108

APPENDIX H

1998 U.S. App. LEXIS 1047 printed in FULL format.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

Vv.

JOY RECOVERY TECHNOLOGY CORP.,

Respondent.

No. 97-2001

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

1998 U.S-App. LEXIS 1047

December 8, 1997, Argued

January 26, 1998, Decided

PRIOR HISTORY: [*1] Petition for Enforcement of a

Decision and Order of the National Labor Relations Board.

DISPOSITION: The order of the National Labor Relations

Board is enforced in its entirety.

COUNSEL: For NATIONAL LABOR RELATIONS

BOARD, Petitioner: Elizabeth Kinney, NATIONAL LABOR

RELATIONS BOARD, Region 13, Chicago, IL USA. Aileen

A109

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

A. Armstrong, William M. Bernstein, NATIONAL LABOR

RELATIONS BOARD, Appellate Court, Enforcement

Litigation, Washington, DC USA.

For JOY RECOVERY TECHNOLOGY CORPORATION,

Respondent: John J. Toomey, ARNOLD & KADIJAN,

Chicago, IL USA. Donald W. Anderson, Daniel V. Kinsella,

BURDITT & RADZIUS, Chicago, IL USA.

JUDGES: Before KANNE, ROVNER, and EVANS, Circuit

Judges.

OPINIONBY: EVANS

OPINION: EVANS, Circuit Judge. The National Labor

Relations Board seeks enforcement of its order requiring the

Joy Recovery Technology Corporation to reinstate its

transportation department and to bargain with Local 673 of

the International Brotherhood of Teamsters.

The NLRB determined that Joy violated Section

8(a)(1) of the Labor Management Relations Act (29 U.S.C. §

158 (a)(1)) by interrogating employees, soliciting surveillance

of union activities, and threatening employees with layoff if

they selected the union as their bargaining representative; that

the company violated Section 8(a)(3)(1) of the Act by the

discriminatory discipline of employee Edward Kizior for

union activity and the unlawful closing of its transportation

department and the termination of the employees, all at its

facility in Aurora, Illinois. The Board ordered the company

to cease and desist from the unfair labor practices, to

reestablish its transportation department as it previously

A110

t |

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

existed, to reinstate employees unlawfully terminated, to

expunge from its files references to the unlawful suspensions,

and to post copies of a remedial notice. In addition, the Board

entered a bargaining order, pursuant to NLRB v. Gissel

Packing Co., 395 U.S. 575, 23 L. Ed. 2d 547, 89S. Ct. 1918

(1969).

Joy is involved in the reclamation and recycling of

scrap wire and other materials for Ameritech, its only

customer. Ameritech retains title to the scrap up to the point

of resale. Up until the events of this case, Joy maintained a

transportation department and transported the scrap using its

own employees and equipment, as well as contracting with

independent carriers. The transportation department had nine

employees.

In late May 1994 transportation department driver Ed

Kizior contacted Robert "Ace" Warren, a Teamsters

representative, to find out about obtaining union

representation. Kizior arranged for a meeting between Warren

and the employees on July 9, 1994. The employees, who were

present, signed union authorization cards, and on July 11 the

union filed a petition seeking certification. On July 13 Joy

received formal notice that the petition had been filed.

On August 5 Kizior [*3] received a written warning

Stating that he and employee Jose Lopez had taken a company

truck without prior authorization and that he would be

suspended for 3 days without pay. He claims the use of the

truck was authorized to take Lopez to his drivers license

exam.

Alll

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

By August 11 Joy distributed a memo to employees

saying that the transportation department had caused financial

losses to the company, that it would be closed, and that the

company would rely on contracts with common carriers,

effective August 22. On August 12 the company wrote the

union, informing it of the above and that it would be notifying

its drivers of the decision to terminate their employment.

The Board found that during July--the time when the

employees were meeting with union representatives--the

company engaged in inappropriate conversations with

employees. Company manager Mark Matza asked employee

Michael Watson which employees had signed union cards.

Watson said he did not know. Matza reportedly told Watson

that "something is going to have to be done" because he did

not want it [apparently referring to the union] to "spread

throughout the whole plant." During mid-July company

supervisor Roberto Baltazar [*4] asked Lopez (the

employee involved in the truck incident) if he knew anything

about the union and which employees had signed union cards.

Lopez lied and said he did not. Baltazar also wanted to know

if anyone had asked Lopez to sign a card and whether he

knew who the head of the union was. Baltazar reportedly told

Lopez that they did not need a union at the company.

In addition, the Board found that manager Matza

discussed the transportation department with Julia Chandler,

a dispatcher for the department. Matza told Chandler that he

was interested in knowing who had contacted the union. He

asked if it was Kizior, but Chandler refused to say. Matza

then asked if it was Dave Woodard, who, Matza said, had

previously mentioned "getting a union in there." Matza asked

All12

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

Chandler whether there was anything that the company could

offer the employees to "make them not seek representation. "

He also asked her where the union meetings were held, who

attended them, and whether she could obtain copies of union

literature. Incredibly, he asked her to take a tape recorder into

a meeting to surreptitiously record it. Matza asked Chandler's

opinion of closing the transportation department. This was the

(*5] first time she had heard anything about closing the

department, and she asked if the union had anything to do

with the company's having the idea to close it. He said that

the union "did play a major part" in the decision.

Other findings include that general manager Simon

Pawlenko also discussed the union with Chandler, telling her

he thought she had brought the union in. He subsequently told

her to use more outside carriers for transporting scrap to Joy's

facilities.

The company had always used some outside Calriers,

and maintaining its transportation department had been

troublesome because the operation was small and inefficient.

In fact, Ameritech complained about the transportation

services Joy provided. On July 29, 1994, Ameritech wrote to

Matza and pointed out that there had been dissatisfaction with

scrap pickups and that Ameritech would continue to allow Joy

to handle the transportation of scrap for 30 days, but if by

September 1 there was not significant improvement,

Ameritech would put into place alternative transportation

processes.

Sometime in late 1993 or early 1994, before the union

activity began, the company talked with James Bowman about

A113

NLRB v. Joy Recovery Technology Corp..,

1998 U.S. App. Lexis 1047

the problems in the department, [*6] and he was hired to do

a study. There is a dispute as to the purpose of the study. The

employees who testified at the hearing in this matter said that

when Bowman spoke with them, he asked questions regarding

how to improve the department. Joy, on the other hand, said

he was hired to do a distribution study to determine

alternatives to the department. The NLRB found that the

original purpose of hiring Bowman was to study how to

improve the department; the company wanted to continue to

transport some of the materials itself to avoid making it easy

for Ameritech to send materials elsewhere. Nevertheless, the

company used the Bowman study to justify a decision to close

the department.

Our review of the NLRB's order is limited. We uphold

the factual findings if they are supported by substantial

evidence in the record as a whole and we uphold the legal

conclusions if they have a reasonable basis in the law. NLRB

v. P *] * E Nationwide, Inc., 923 F.2d 506 (7th Cir. 1991).

We affirm the Board's findings if they are supported by

substantial evidence, even if we might have made a different

finding. Central Transport, Inc. v. NLRB, 997 F.2d 1180

(7th Cir. 1993). As to credibility determinations when there

are two conflicting versions of the same incident, the ALJ's

credibility determinations are entitled to deference. We avoid

redetermining credibility "on the basis of a cold record."

Carry Companies of Illinois, Inc. v. NLRB, 30 F.3d 922, 928

(7th Cir. 1994).

In fact, in this case, the principal attack the company

makes on the decision of the NLRB relates to the credibility

findings of the ALJ. The company contends that this

All4

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

particular ALJ is biased; that he always uses the same words

in his decisions--the company calls it a "mantra"; and that he

has never seen an unfair labor practice claim he did not like.

A similar attack was made before the Board. Joy presented an

analysis of how often the ALJ involved in this case credited

General Counsel's witnesses rather than employer witnesses

and contended that the ALJ was 4.6 times more likely to

credit the former rather than employer witnesses. However,

Joy is careful to make no representations regarding the

reliability of the study except that its best efforts were used in

compiling the information. That the study is clearly and

admittedly unscientific undermines its usefulness. More

importantly, as the NLRB points out, Joy [*8] analyzed cases

in which the respondent was a company but did not include

any cases in which a union was the respondent. What may be

true is that the ALJ may have in the past believed the NLRB's

witnesses more often than a respondent's witnesses, whether

that respondent was a company or a union. Given that we

have no reason to believe that the NLRB brings cases without

making its own determination as to whose story is credible,

that result may not be much more surprising than that the

conviction rate of U.S. Attorneys is vastly higher than the

acquittal rate of defense attorneys, a comparison which, we

believe, underlines the danger in our crediting statistical

studies of credibility determinations.

The primary point here is, however, that generally

decisions are most appropriately reviewed carefully and on

their own merits. And that is what the Board did in this case.

It looked at the record and concluded that the credibility

findings were entitled to deference. We agree. It is not true,

as Joy contends, that the ALJ simply made blanket statements

All5

a

NLRB v. Joy Recovery Technology Corp..,

1998 U.S. App. Lexis 1047

regarding credibility. The ALJ in this case was confronted

with two explanations of events, two versions of the story. In

such a case a [*9] judge must decide which one is more

credible. We think a statement such as the following to be a

quite adequate explanation of his choice:

And, I reject here as equally incredible the assertions

by Matza, Young and Bowman that the Employer's sudden

decision on August 11 to resort to total outsourcing or total

subcontracting of its transportation services was not in

response to or caused by the transportation department

employees turning to the Union to represent them. The

credible evidence of record, as discussed below, demonstrates

that Respondent Employer had operated its transportation

department at a financial loss for many months; had instituted

comprehensive studies and actions then under way to improve

its services in this department and had not taken any steps to

totally outsource or totally subcontract its transportation

services until the employees sought Union representation. I

am persuaded on this record that the Employer's sudden

August 11 decision to totally outsource or totally subcontract

this work was in response to this employee protected activity

and would not have occurred had the employees not sought

Union representation.

The judge on the [*10] front line is in the best position

to determine which of two stories told by competing witnesses

should be credited.

We will turn now to the merits. Section 8(a)(1) makes

it an unfair labor practice for an employer "to interfere with,

restrain, or coerce employees in the exercise” of the right to

A116

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

organize. The test for determining whether a violation has

occurred is whether an employer's actions had a reasonable

tendency to interfere with or coerce employees, not whether

the employer intended to interfere. NLRB v. Q-1 Motor

Express, 25 F.3d 473 (7th Cir. 1994), cert. denied, 513 U.S.

1080, 115 S. Ct. 729, 130 L. Ed. 2d 633 (1995). Whether an

employer's questioning of an employee is coercive depends on

the factual context in which the questioning occurs. NLRB v.

Shelby Mem'l Hosp. Ass'n, 1 F.3d 550 (7th Cir. 1993). The

testimony of the employees, credited by the ALJ and the

Board, is clearly sufficient to support a finding of coercion.

The testimony shows a sense of company hostility toward the

union, and certainly, for instance, asking an employee to

secretly tape record union meetings is coercive. That the

employees felt coerced is shown by the fact that they lied in

response to [*11] questioning by company agents.

However, the company contends that its questioning

of Julia Chandler was not unlawful because she was a

supervisor. We note at the outset that the burden of

establishing supervisory status is on the one asserting it.

NLRB v. Bakers of Paris, Inc., 929 F.2d 1427 (9th Cir.

1991). On this point, Chandler's credibility is much in dispute

because her description of her authority is partial support for

the claim that she was an eligible member of the bargaining

unit. She says that she did not have the power to hire or fire.

She acknowledged that she recommended that certain

employees be disciplined but maintained that someone higher

up the chain of command had to approve the action. The

company contends that she had authority to approve overtime,

days off, and cash advances of up to $ 300. Those powers,

along with her authority to recommend discipline and

A117

NLRB v. Joy Recovery Technology Corp..,

1998 U.S. App. Lexis 1047

discharge, gave her, the company says, authority similar to

the dispatcher, who was found to be a supervisor, in E & L

Transport Co. v. NLRB, 85 F.3d 1258 (7th Cir. 1996).

The Board's determination as to whether a particular

position is supervisory within the Act is an application of law

to fact, reviewed under the substantial evidence standard. E

& L, 85 F.3d at 1269. The definition of supervisor is found

in § 152(11):

The term "supervisor" means any individual having

authority, in the interest of the employer, to hire, transfer,

suspend, lay off, recall, promote, discharge, assign, reward,

or discipline other employees, or responsibly to direct them,

or to adjust their grievances, or effectively to recommend

such action, if in connection with the foregoing the exercise

of such authority is not of a merely routine or clerical nature,

but requires the use of independent judgment.

In that section Congress sought to distinguish between

"genuine management prerogatives" and employees--such as

straw bosses and lead men--who enjoy the Act's protections

even though they perform "minor supervisory duties." NLRB

v. Bell Aerospace Co., 416 U.S. 267, 280-83, 40 L. Ed. 2d

134, 94 S. Ct. 1757 (1974) (quoting S. Rep. No. 105, 80th

Cong., Ist Sess. 4 (1947)).

It is not always an easy distinction to draw, and a

position as a dispatcher is one which falls on the line. In E &

L we found that a dispatcher who used the title supervisor,

issued reprimands, identified with management, [*13]

attended management meetings, and oversaw a work force of

A118

=

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

69 employees was a supervisor. He was also a salaried

employee. Chandler, on the other hand, clearly did not

identify with management, but with the 8 or so employees she

was the dispatcher for. She was not salaried, but rather was

paid $ 9 per hour, less than the drivers she dispatched. The

incidents in which employees were disciplined upon her

“recommendation” are not convincing evidence that she had

supervisory status. After an incident of an employee throwing

credit cards at her for the second time, Chandler went to plant

manager Pawlenko to see whether there was any way to

suspend the employee. Pawlenko told her to suspend the

employee for three days. That is not compelling evidence that

Chandler had authority to discipline the employee or even to

effectively recommend discipline. Later Pawlenko apparently

agreed to listen to the disciplined employee's side of the story.

When, during the meeting of the two men, with Chandler

present, the employee became abusive to Pawlenko, Pawlenko

terminated him without ado. The other example put forward

by the company to show Chandler's supervisory status

involves an incident in which [*14] an employee feigned that

he had been kidnaped and called Chandler, telling her that he

was being held hostage. The incident frightened her, and she

asked the plant manager to fire him. It would seem that any

employee, including those unquestionably eligible for the

bargaining unit, would have the right to request that a fellow

employee be disciplined for either of these incidents. Had

Chandler perceived herself as having, or had she been

perceived by others as having, the authority to discipline or

recommend discipline, one would expect her action in

response to these events to be considerably more direct. There

is substantial evidence in the record to support the Board's

conclusion that Chandler was not a supervisor within the

A119

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

meaning of § 152(11).

Section 8(a)(3) prohibits dis:rimination against any

employee in order to discourage membership in a union. An

employer violates Section 8(a)(3, by retaliating against

employees for engaging in union activities. In NLRB v.

Wright Line, a Division of Wright Line Inc., 251 N.L.R.B.

1083 (1980), the NLRB set out a tamework for analyzing

such claims. The Wright Line test iequires General Counsel

to prove that antiunion animus was a substantial [*15] or

motivating factor in the employer's jecision to make adverse

employment decisions. The employe: can then avoid a finding

of an unfair labor practice if it canshow that it would have

taken the action regardless; that is, fir legitimate reasons. The

test was approved by the Supreme Court in NLRB v.

Transportation Management, 462 .S. 393, 76 L. Ed. 2d

667, 103 S. Ct. 2469 (1983). However, in Director, Office of

Workers’ Compensation Programs, Department of Labor v.

Greenwich Collieries, 512 U.S. 267.129 L. Ed. 2d 221, 114

S. Ct. 2251 (1994), the Court rejected the interpretation of

§ 7(c) of the Administrative Procedure Act (5 U.S.C. §

556(d)) set out in Transportation Management but reaffirmed

its holding. The Court stated:

The NLRB's approach in Transportation Management

is consistent with § 7(c) because the NLRB first required the

employee to persuade it that antiuniyn sentiment contributed

to the employer's decision. Only thea did the NLRB place the

burden of persuasion on the employer as to its affirmative

defense.

Greenwich Collieries has been read, nevertheless, as

A120

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

a modest refinement or clarification of the Wright Line

standard. It makes clear that the [*16] analysis does not

simply require General Counsel to establish a prima facie

case. General Counsel must establish that antiunion animus

was a motivating factor in the decision. If General Counsel

succeeds, the employer--to escape a finding of an unfair labor

practice—must establish its affirmative defense--that it would

have taken the action regardless for nondiscriminatory

reasons. See Schaeff Inc. v. NLRB, 324 U.S. App. D.C. 311,

113 F.3d 264 n.5 (D.C. Cir. 1997).

In this case, timing is everything. The closing of the

department comes on the heels of the union's organizational

activity. But it also follows a troublesome time with the

transportation department and, in fact, a study of the

department. In a sense, timing supports both sides. We think,

however, that on the record as a whole, there is substantial

evidence to support the finding that the decision to close the

department was a result of antiunion animus. The timing of

the elimination of the department, coming as it did, right after

the union sought recognition, the testimony that the Bowman

study was initially commissioned to improve the department,

the fact that Joy had seemed to want to have a transportation

department so that it would be harder for Ameritech to ship

to other recyclers--or easier to ship to Joy, and the fact that

the company maintained the department, unprofitably, for a

significant period of time--all provide substantial evidence for

the decision reached by the Board rather than for the opposite

conclusion that the department was closed for legitimate

business reasons.

Similarly, there is evidence to support the finding that

Al21

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

the discipline of Kizior, who was correctly suspected of being

behind the unionization effort, was unlawful. Again, the

timing was suspicious. Also, the company explanation that

Kizior was suspended for taking a truck without authorization

is suspect. Chandler's records show that Pawlenko approved

Kizior's taking the truck to take Lopez to his driver's test.

That was all that Kizior did.

The next question involves whether the company had

a duty to bargain about the closing of the department. Section

8(a)(5) of the Act makes it an unfair labor practice for an

employer to refuse to bargain with the representative of the

employees over a mandatory subject of bargaining. The

company says that it did not violate this section because it did

not refuse to bargain, [*18] and in any event the union did

not have majority status nor was the closing of the department

a mandatory subject of bargaining.

Joy contends that majority status was not established

because of supervisory participation in the unionization effort

and furthermore that the union waived its right to bargain.

Chandler is the alleged supervisor, so the claim as to

supervisory participation in the unionization effort must fail

for the reasons we have just noted. As to whether Joy was

willing to bargain, Joy wrote a letter to the union on August

12 in which it said that if the union had majority status it

would bargain over the effects of Joy's decision. The union

did not respond to the August 12 letter in which this offer was

made. The NLRB found that because the letter was merely an

offer to bargain over a foregone conclusion, bargaining would

be futile. There is substantial evidence to support this finding.

A waiver of statutory bargaining rights must be clear and

A122

:

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S.

693, 75 L. Ed. 2d 387, 103 S. Ct. 1467 (1983). Here, the

union did not waive its right to bargain; had it bargained it

would merely have been lending legitimacy to the [*19]

decision which had already been made.

Next, we must consider whether the Board was right

to conclude that Joy had a duty to bargain over the closing of

the department and subcontracting the work. Under Section

8(a)(5) (29 U.S.C. § 158(a)(5)), it is an unfair labor practice

for an employer to refuse to bargain with the representative of

the employees. Under § 158(d) the employer and the

employees' representative have a mutual obligation to confer

with respect to wages, hours, and "other terms and conditions

of employment." One question, then, is whether the closing

of the department involves a term or condition of

employment.

Fibreboard Paper Products v. NLRB, 379 U.S. 203,

13 L. Ed. 2d 233, 85 S. Ct. 398 (1964), says that a decision

to subcontract work is a mandatory subject of bargaining.

However, in a subsequent case the Court determined that an

entrepreneurial decision to close down part of a business for

purely economic reasons is not a mandatory subject of

bargaining. First National Maintenance Corp. v. NLRB, 452

U.S. 666, 69 L. Ed. 2d 318, 101 S. Ct. 2573 (1981). The

contrast is between a decision to substitute one set of

employees for another and the decision to change the scope

and direction of the business. However, in ruling for the

employer in First National Maintenance, the Court

emphasized that the motivation of the company was purely

economic; there was no claim of antiunion animus. And the

A123

NLRB v. Joy Recovery Technology Corp.,

1998 U.S. App. Lexis 1047

Court pointed out that under Section 8(a)(3) a union is

protected against a partial closing of an operation which is

motivated by hostility toward the union. Here, the Board

specifically adopted the ALJ's determination that Joy violated

Section 8(a)(5). What two members of the Board said was that

"it is well established that an employer's subcontracting

decision cannot be a legitimate entrepreneurial decision

exempt from bargaining when, as here, antiunion

considerations are at the heart of the alleged fundamental

change in the direction of the corporate enterprise." A third

member would have found it unnecessary to decide whether

Joy violated Section 8(a)(5) because the violation of Section

8(a)(3) is clear.

We find that there is substantial evidence to support

the Board's decision. First, the decision to close the

department was not made for purely economic reasons. And,

secondly, we have found substantial evidence to support the

Board's finding that hostility [*21] toward the union is the

motivating force behind the decision. That finding prevents

the application of First National Maintenance and also sustains

a finding that the company violated Section 8(a)(3).

So we arrive at the issue as to whether the remedial order

was an abuse of the Board's discretion. Joy contends that the

part of the order requiring the restoration of the transportation

department would be difficult and expensive. First, we note

that the Board was within its authority to issue such as order

unless the company demonstrates that a restoration order

would be unduly burdensome. Jays Foods, Inc. v. NLRB, 573

F.2d 438 (7th Cir. 1978). Here, as the Board noted, Joy

continues to have an ongoing contractual relationship with

A124

a cal

NLRB v. Joy Recovery Technology Corp..,

1998 U.S. App. Lexis 1047

Ameritech to provide trucking services and still owns all the

equipment used to transport the scrap. Furthermore, two of its

former employees work for one of the subcontractors.

Finally, we consider whether the bargaining order was

appropriate. In Gissel the Court determined that the duty to

bargain can arise without a Board election if majority status

of the union can be established by union authorization cards

and if the company engages in unfair labor [*22] practices

which would undermine the ability to have a fair election.

Furthermore, under Gissel the Board is granted significant

discretion in the remedial orders it issues.

Here, there is clearly majority status. There are also

unfair labor practices which would undermine the ability to

hold a fair election. The unit is small; the employees have all

lost their jobs; they were intimidated when questioned by high

level managers even before the department was closed. There

is a significant basis on which to issue a Gissel order to

bargain. The order of the National Labor Relations Board is

enforced in its entirety.

A125