# Petition for Writ of Certiorari — John Conlee Enterprises, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2370%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 523 U.S. 1060 ## Text \ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2370%3A1. Public record. Not legal advice.