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National Labor Relations Board v. Berger Transfer & Storage Co.

decided: May 13, 1982.


On Petition for Enforcement of an Order of the National Labor Relations Board and Cross-Application for Review

Before Bauer and Cudahy, Circuit Judges, and Baker, District Judge.*fn*

Author: Baker

The National Labor Relations Board (the "Board") has petitioned the court to enforce the Board's order finding the respondent Berger Transfer & Storage, Inc. (The "Company") guilty of unfair labor practices and directing the Company to bargain with the intervenor, Truck Drivers, Oil Drivers, Filling and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (The "Union"). The Company has cross-applied for review.

Four questions are presented for review:

(1) Did the Administrative Law Judge (the "ALJ") articulate sufficient reasons for his credibility determinations?

(2) Does the record support the findings concerning the supervisory status of employees Jerry Gocha and James Stang?

(3) Does the record support the findings of numerous unfair labor practices?

(4) Did the Board properly issue a Gissel bargaining order?

We answer each of the questions in the affirmative and enforce the Board's order.

The Company operates a national moving and transfer business. In May and June of 1979, the Company operated a warehouse at Lombard, Illinois, and employed approximately forty drivers, warehousemen and helpers. At the times in question, Karl Maierhofer was the general manager of the terminal and Mark Harris was the operations manager.

On Monday, May 21, and Wednesday, May 23, 1979, Union business agents Jerry Rzewnicki and William Dicks went to the Lombard warehouse and spoke with a number of employees concerning the benefits of unionization. The agents gave the interested employees authorization cards, which they filled out and signed in the presence of Rzewnicki and Dicks and returned to the agents. As a result, the Union possessed signed cards from a majority of employees.*fn1

On May 21, the Company general manager, Karl Maierhofer, and the operations manager, Mark Harris, noticed the Company employees talking to Rzewnicki and Dicks and saw the employees signing cards. Maierhofer and Harris knew of rumors that the Union sought to organize the employees.

As operations manager, Harris made daily work assignments from a list of about twenty-five employees arranged in order of seniority. Harris would give a copy of the assignment list to warehouse foreman Jerry Gocha, who ensured that trucks were loaded and that designated drivers were properly dispatched. On May 21 Harris assigned work to the seventeen senior-most employees, and gave no work to those with less seniority. When an employee asked why there was no work available for those with less seniority, Harris replied that, "with all the union stuff going on, he was not going to use everyone." Appendix for Appellants at 4. Also that day, general manager Maierhofer told a warehouse employee that, if there was a union at the warehouse, there would be less work and smaller crews, and that those with less seniority would lose their jobs. Maierhofer later asked two other employees why the employees were organizing and who among the employees wanted to unionize. During that conversation, Maierhofer made notes on a list of Company employees.

On the same afternoon, Harris and James Stang, a sales representative who held himself forth as a vice-president in charge of sales of the Company, asked several employees why they wanted a union. Stang persisted in asking what a union could do for the employees that the Company could not do. Harris and Stang told the employees that, if a union came in, they would reduce work by not booking any jobs on Mondays and Tuesdays.

On the following day, Tuesday, May 22, the Company posted a list assigning work to sixteen employees and providing no work for about fifteen of the listed employees.

On May 23, Rzewnicki met Maierhofer, identified himself, handed Maierhofer the signed authorization cards, presented Maierhofer with a Recognition Agreement, and asked him to sign it. Maierhofer refused to sign the Agreement, took the Union cards, and went inside his office. Two hours later, Maierhofer returned the cards to the Union.

At about 8:30 AM the Union began to picket the warehouse premises for recognition of the Union. At about 10:30 AM Maierhofer and Harris summoned a number of picketers and told them that they would be terminated and their insurance would be cancelled if they did not return to work by 11:00 AM. Shortly after the meeting, the Union changed its picket signs to protest unfair labor practices. On May 23 the Company sent telegrams to its employees telling them to return to work or the Company would consider that the employees had voluntarily terminated their employment along with their hospitalization coverage. Appendix for Appellants at 7.

On the afternoon of May 23 the employees formed a picket line across the driveway entrance at a point which intersected Grace Street, a public right-of-way. At that time, Harris was required to deliver a piece of machinery to a customer of the Company in one of the Company trucks. As the truck passed out of the driveway and through the picket line, Harris applied the truck's brakes in order to avoid an oncoming automobile on Grace Street. In the course of braking, the truck "fishtailed" and the rear hit the picketer, Terry Most, knocking him into the picketer, Frank Gocha. Harris did not stop but continued on his way. Harris later told employee Overton that Harris had hit the picketers both "intentionally" and "unintentionally."

On the evening of May 23, Company Vice-President Frank Goodwin, who worked at the Company's facility in Dallas, Texas, telephoned two of the striking employees, Overton and Frank Gatz. Goodwin asked both Overton and Gatz why the workers were out on strike, whether something could be worked out with the employees if Goodwin flew back to Chicago for a meeting, and who the organizers of the union effort were, suggesting it might be employees Roesecke and York. Overton told Goodwin that things had gone too far for a meeting and that he was prepared to support the union effort even if it meant losing his job. Goodwin replied that while Overton would not lose his job, employees at the bottom of the seniority list might lose their jobs.

On the following day, Maierhofer summoned Roesecke, York, Redmond, and Richard Way from the immediate vicinity of the picket line and asked them why they were trying to organize and " "(w)hy are you doing this to me?" Appendix for Appellants at 8.

On May 24 at about 2:00 PM Company President William Dircks telephoned Overton to ask who was responsible for the organizing effort, and whether he and Overton could meet to talk the matter out. When Overton told Dircks no, because he wanted the grievance procedure and job security that union organization would provide, Dircks suggested that the Company might set up a grievance procedure similar to the one provided for in the Union contract. Overton said no, "that he was willing to go all the way with the Union even if it meant getting fired. Dircks said, "(t)hat's just what will happen,' and adding that he would not be strong-armed into recognizing the union." Appendix for Appellants at 9.

Late in the afternoon of the same day, Harris initiated a meeting with York, Roesecke, and Overton. Harris told the employees that if they continued with the Union organization and the strike the Company would close the warehouse, send the equipment to the Minnesota headquarters, and turn its accounts over to another company.

On Sunday afternoon, May 27, Company Vice-President Goodwin and his wife were back in the Chicago area and paid a social call on York. During the course of their conversations, Goodwin asked York why the employees wanted the union. Goodwin wanted to know if Phil Roesecke was one of the instigators and whether the top man in the organizing campaign would meet with Dircks and discuss their differences.

On Monday afternoon, May 28, the Company sent a telegram which informed the employees that the telegram of May 23 was sent without authority and that the employees' jobs were available.

On June 6, at about 2:30 PM, two men who worked for the Company, Charles Voelker and James Miller, attempted to leave the Company premises in Harris' pickup truck, but decided not to cross the picket line. Instead, they parked Harris' truck in the Company parking lot and went into the office. Miller and Harris then emerged and got into Harris' pickup truck. The ALJ found testimony credible that Harris drove the truck toward the picket line and " "floored' his accelerator and, in the process of crossing the line struck Gatz and Mundt who were picketing." Appendix for Appellants at 10.

On June 15 the picketing ended. Most of the employees returned to work on June 18. On the first day of work following the strike, Harris informed Gocha that he would no longer be warehouse foreman and placed Gocha's name about twenty-third on the seniority list, with the result that Gocha rarely worked a forty hour week.


The Board adopted the rulings, findings and conclusions of the ALJ, including those regarding credibility. The Board found "no basis on the record in this proceeding for reversing (the ALJ's) credibility determinations or his findings of fact thereon" and that the allegations of bias and prejudice on the part of the ALJ were "totally without merit." Appendix for Appellant at 40 n.1. We agree.

Credibility determinations, including assessments of demeanor, are to be made by the ALJ and the Board, and will not be overturned by a reviewing court absent extraordinary circumstances. NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613 (7th Cir. 1981); NLRB v. Mars Sales & Equipment Co., 626 F.2d 567 (7th Cir. 1980); Medline Industries, Inc. v. NLRB, 593 F.2d 788 (7th Cir. 1979); Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 256 (1978). In the recent case of Kopack v. NLRB, 668 F.2d 946 (7th Cir. 1982), this court elaborated on the proper scope of reviewing "credibility" determinations. To the extent that the ALJ's decision rests explicitly on his evaluation of demeanor, the Board and a reviewing court are required to "weigh those particular findings more heavily." Id. at 954. Moreover, explicit credibility findings are unnecessary when the ALJ implicitly resolves conflicts in testimony as evidence by findings of fact which are supported by the record as a whole. Electri-Flex Co. v. NLRB, 570 F.2d 1327 (7th Cir.), cert. denied, 439 U.S. 911, 99 S. Ct. 280, 58 L. Ed. 2d 256 (1978). As pointed out in Medline Industries, Inc. v. NLRB, 593 F.2d 788, 795 (7th Cir. 1979), absent a clear showing of bias, the court will uphold credibility determinations by an ALJ unless there is a "complete disregard for sworn ...

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