PAUL M. O'NEILL INTER. DETECTIVE AGENCY, INC. v. NLRB

• Decision Date: 22 June 1960
• Docket Number: No. 12992.,12992.
• Citation: 280 F.2d 936
• Parties: PAUL M. O'NEILL INTERNATIONAL DETECTIVE AGENCY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

280 F.2d 936 (1960)

PAUL M. O'NEILL INTERNATIONAL DETECTIVE AGENCY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 12992.

United States Court of Appeals Third Circuit.

Argued March 7, 1960.

Decided June 22, 1960.

C. P. Lambos, New York City (Lorenz, Finn & Giardino, New York City, Alfred Giardino, Joseph A. Byrne, New York City, on the brief), for petitioner.

Melvin J. Welles, Washington, D. C. (Stuart Rothman, Gen. Counsel, Thomas J. McDermott, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., on the brief), for respondent.

Before GOODRICH, STALEY and FORMAN, Circuit Judges.

FORMAN, Circuit Judge.

Petitioner, Paul M. O'Neill International Detective Agency, Inc., seeks to have set aside an order of the National Labor Relations Board entered July 20, 1959,¹ pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S. C.A. § 151 et seq. Jurisdiction of the court exists under Section 10(e) and (f) of the Act.

Petitioner, a New Jersey corporation, conducts a detective agency in the course of which it furnishes guard service for 33 industrial plants located in the northern and central parts of New Jersey. Approximately 157 guards were employed at the time in suit. On November 23, 1956, the petitioner signed a collective bargaining agreement with the Independent Guards Union (hereafter IGU). Another organization called the New Jersey Guards Union (hereafter NJGU), unsuccessful in its attempt to unionize the petitioner's guard employees, filed a petition for a representation election on November 27, 1956, which was held on April 5, 1957.

The result of the election was:

                  Votes cast for NJGU ............    17
                  Votes cast for IGU .............   127
                  Votes cast against participating
                   labor organizations ...........     7
                

On April 12, 1957, NJGU filed objections to the conduct of the election and on May 14, 1957, it filed charges against the petitioner based on the same allegations upon which the objections to the election were founded. A complaint² was issued on December 31, 1957. It was consolidated with the objections to the election for the purpose of a hearing before a Trial Examiner pursuant to the direction of the Board.

The Trial Examiner ruled that the petitioner was guilty of unfair labor practices "in violation of Section 8(a) (2) and (3) of the Act, thereby interfering with, restraining and coercing the employees in the exercise of rights guaranteed by the Act in violation of Section 8(a) (1)." He recommended, among other things, that the election of April 5, 1957, should be set aside and a new election directed; and that petitioner should refund to all employees and former employees at the various plants in New Jersey, from whose wages it has deducted funds for transmittal to the IGU the amount of such deductions.³

Three members of the Board adopted the findings, conclusions and recommendations of the Trial Examiner.⁴ Two members dissented.

Two questions are presented. First does the Board's determination that the petitioner assisted the Independent Guards Union in violation of Section 8 (a) (1) and (2) of the Act⁵ find substantial support in the record as a whole, and second, did the petitioner violate Section 8(a) (3) of the Act⁶ by executing a contract containing a union security clause with the IGU before the latter had complied with Section 9(f), (g) and (h) of the Act which require that the union file its constitution, by-laws and annual financial reports, and that the union's officers file non-Communist affidavits as a condition of recourse to the Board.

As to the first question, petitioner contends that the Trial Examiner should have believed the testimony of witnesses called by it and the IGU rather than those called by the General Counsel.

The petitioner stresses that the findings of the majority of the Board as to illegal assistance are unsupported by substantial evidence, and are clearly contrary to the preponderance of the credible evidence.

It leveled an attack upon the acceptance by the Trial Examiner and a majority of the Board of the testimony of Brendan B. McElaney, a captain of guards at the plant of Givaudan Corporation, who implicated both Donald J. Leahey, Director of Operations of petitioner, and Bernard T. Sweeney, Sales Manager and assistant to Paul M. O'Neill, petitioner's president, in the matter of assisting the Independent Guards Union in the distribution of its authorization cards. The petitioner asserts that his testimony was indefinite, vague and contradictory and that the Trial Examiner erred in regarding it as believable in the face of denials by Leahey and Sweeney. Attention was called to the fact that in his testimony McElaney did not remember whether occurrences involved Leahey or Sweeney; that McElaney answered "No" to a question under oath in two employment applications, inquiring whether he had ever been convicted of a crime, when in fact, he had more than twenty years prior thereto, pleaded guilty to petty larceny and had received a suspended sentence; that at the time of the hearing he was employed by a competitor of the petitioner which had a labor contract with the NJGU; and that a number of other circumstances were present which petitioner felt should have prompted the Trial Examiner to reject his testimony. Instead, petitioner contends that the Trial Examiner and the majority of the Board credited the testimony without so much as discussing any reasons therefor.

McElaney conceded that his memory was dim as to whether it was Sweeney or Leahey who placed the IGU authorization cards on his desk and asked him to get them signed. But he was positive that it was either one or the other of these supervisory heads of the petitioner. Both denied his statements. Even in the absence of a discussion by the Trial Examiner of his reasons for believing McElaney against the words of Sweeney and Leahey we must presume that he took into consideration their denials and McElaney's weakened memory, in making his determination as to whom to believe. McElaney's status, at the time he testified, as an employee of a rival of petitioner, under a labor contract with the NJGU and that he had twice misstated that he had never been convicted of crime in applications for employment when in fact he had pleaded guilty to a charge of petty larceny twenty years before, were not matters that necessarily destroyed his testimony. They were for the consideration of the Trial Examiner in determining along with all the other believable evidence the weight to be given to McElaney's assertions.

Petitioner next charged that the acceptance of the evidence of a guard named Edward R. Howe, was an error. He was assigned to the plant of the Continental Paper Company. He testified that Sweeney accompanied by Clem Schramma, vice-president of the IGU, visited the Continental plant; that Sweeney introduced Schramma as a representative thereof and stated that

"his Schramma\'s Union went before Mr. O\'Neill and submitted a contract which calls for four holidays at double time, five days vacation for the first year, ten days vacation the third year and 15 days vacation the fifth year."

Howe testified that Sweeney said,

"Mr. O\'Neill figures the contract was suitable for the men and he agreed with them that he wouldn\'t recognize any other union."

Sweeney handed Howe, according to the latter's testimony, seven IGU cards and asked him to have the men at Continental Paper sign them, which Howe undertook to do. Sweeney, said Howe, told him that he might as well sign his own card which he did thereupon and handed it back to Sweeney. Petitioner argues that Howe's testimony was rendered unbelievable because he put the date of his meeting with Sweeney and Schramma, at which the foregoing is alleged to have occurred, at November 24, 1956, when his IGU card in his own handwriting is dated November 19, 1956, and the contract between petitioner and IGU was not signed until November 23, 1956. Petitioner says that Sweeney could not have told what the contract would contain on November 19, the date on which Howe signed his IGU card. Petitioner cited other circumstances and inconsistencies that it asserted showed that Howe's memory was faulty, and Sweeney and Schramma contradicted Howe's statements as to any activity by Sweeney in soliciting Howe to either sign his card or get other guards to sign.

Howe remained unshaken in his testimony with regard to his conversation with Sweeney concerning the distribution of the IGU cards and that he had signed one in Sweeney's presence and at his request, thereupon handing it to Sweeney. For all his confusion of dates and the contradictions of other witnesses it was still within the province of the Trial Examiner to believe or disbelieve him. Howe was still in the employ of the petitioner at the time of the hearing and the Trial Examiner, well within his right, for this reason chose to "place considerable credence upon his testimony with respect to resolving the salient issues in this proceeding."

John J. Doran, testifying on behalf of the General Counsel, stated in effect that he had been assigned by petitioner since November 1955 to the plant of the Continental Paper Company as a guard; that in November 1956 as he was leaving the gatehouse of the plant to commence his tour he saw Sweeney from a distance; that at the completion of the tour he returned to the gatehouse and asked Howe what Sweeney had been doing there; that Howe brought out a package of IGU cards stating that "O'Neill is starting a union"; that Sweeney had been there explaining the aims of the union and had left cards for the men to sign and said "There's one for you"; that he did not sign; that the following morning Captain Charles Boerensen in charge of guards at Continental told him that all the men were signing with the IGU and that there was a card for him to sign; that he still refused to...