Roth v. AM. PROP. RIGHTS ASS'N FUEL OIL BUYERS GR.

• Citation: 795 F. Supp. 577
• Decision Date: 27 May 1992
• Docket Number: No. 91 CV 2441.,91 CV 2441.
• Parties: Richard J. ROTH, Acting Regional Director of Region 29 of the National Labor Relations Board, and on Behalf of the National Labor Relations Board, Petitioner, v. AMERICAN PROPERTY RIGHTS ASSOCIATION FUEL OIL BUYERS GROUP, INC., Prudential Transportation, Inc., and Amer-National Heating Service, Inc., Respondents.
• Court: U.S. District Court — Eastern District of New York

795 F. Supp. 577

Richard J. ROTH, Acting Regional Director of Region 29 of the National Labor Relations Board, and on Behalf of the National Labor Relations Board, Petitioner, v. AMERICAN PROPERTY RIGHTS ASSOCIATION FUEL OIL BUYERS GROUP, INC., Prudential Transportation, Inc., and Amer-National Heating Service, Inc., Respondents.

No. 91 CV 2441.

United States District Court, E.D. New York.

May 27, 1992.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Saundra B. Rattner, N.L.R.B., Brooklyn, N.Y., for petitioner.

Lionel Alan Marks, New York City, for respondents.

ORDER

KORMAN, District Judge.

After a de novo review of the record and after hearing extensive oral argument, I adopt in full the recommendation of Magistrate Carter as set out at pages 601-602 of his carefully considered and exhaustive Report and Recommendation dated April 3, 1992.

The Clerk is directed to enter a judgment embodying the foregoing recommendations.

SO ORDERED.

REPORT AND RECOMMENDATION

ZACHARY W. CARTER, United States Magistrate Judge:

Petitioner, Acting Director of Region 29 of the National Labor Relations Board ("Board"), moves pursuant to § 10(j) of the National Labor Relations Act ("Act"), as amended, 29 U.S.C. § 160(j), for an injunction pending final disposition before the Board of consolidated complaints, filed before and after a contested union election, which allege conduct constituting unfair labor practices in violation of §§ 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a)(1) and (a)(3).

American Property Rights Association Fuel Oil Buyers Group, Inc. ("APRA"), Prudential Transportation, Inc. ("Prudential") and Amer-National Heating Service, Inc. ("Amer-National") hereinafter collectively referred to as Respondent, operating as a single, family-owned, integrated enterprise, supply home heating oil and related services to residential customers. Petitioner alleges that respondents engaged in a campaign of coercion, threats, interrogations, surveillance, unlawful promises, discriminatory discharges and other unfair labor practices designed to discourage employee support for the organizing efforts of Local 553, International Brotherhood of Teamsters, Chauffeurs, Warehouseman and Helpers of America, AFL-CIO ("Union"), and to affect the outcome of a Board directed union election. Petitioner seeks an order 1) enjoining respondents from engaging in unfair labor practices; 2) reinstating or preferentially recalling all employees unlawfully discharged and 3) imposing an interim bargaining order requiring respondents to recognize the Union as the representative of respondent's employees for purposes of collective bargaining.

Respondents deny the unfair labor practice allegations and contend that participation by one or more supervisors in the Union's organizing campaign prevented the Union from achieving clear majority support.

This petition was filed on July 3, 1991 and was thereafter referred to me for a report and recommendation. At a July 18, 1991 conference before me, the parties stipulated that the record of the hearing conducted by the Administrative Law Judge (ALJ) on the consolidated complaints pending before the Board would constitute the record upon which this petition would be decided. The ALJ conducted six days of hearings beginning August 14 and concluding August 21, 1991. The ALJ rendered his written decision on November 8, 1991. Thereafter, petitioner requested time to file exceptions to the ALJ decision. Petitioner and respondent submitted memoranda, including copies of exceptions to the ALJ's decision and supporting legal memoranda, through December 27, 1991.

Upon this record and for the reasons set forth below, I recommend that the petition for a preliminary injunction be granted in part and denied in part.

I.

§ 10(j) of the Act permits the Board to petition the district court following issuance of a complaint "for appropriate temporary relief or restraining order." The district court is authorized to grant such relief as it "deems just and proper."

The Second Circuit Court of Appeals held in Kaynard v. Mego Corp., 633 F.2d 1026 (2d Cir.1980), that the court on a Section 10(j) application for a preliminary injunction must determine "`whether there is reasonable cause to believe that unfair labor practices have been committed and, if so, whether the requested relief is ... just and proper ...'" Id. at 1030 (quoting Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir.1980)). The Mego court further stated that "the regional Director's version of the facts should be sustained if within the range of rationality" and "inferences from the facts should be drawn in favor of the charging party." Id. at 1031. Moreover, "on issues of law, `the district court should be hospitable to the views of the General Counsel, however novel.'" Id. at 1031 (quoting Danielson v. Joint Board of Cost, Suit and Allied Garment Workers' Union, I.L.G.W.U., 494 F.2d 1230, 1245 (2d Cir.1974)).

In a similar vein, as respondents urged at oral argument and in their memorandum of law, the court should take into consideration the credibility findings of the ALJ, inasmuch as the ALJ has had the opportunity to observe the demeanor of the witnesses, and this court has not. (See, Transcript of Proceedings dated November 7, 1991, pp. 34-36; Memorandum of Respondent with regard to Extraordinary Remedies, p. 2.) Indeed, it is the well-established policy of the Board "not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all relevant evidence convinces the Board that they are incorrect." PHT, Inc. d/b/a Polynesian Hospitality Tours, et al., 1989 WL 224485, 1989 NLRB LEXIS 687; 133 L.R.R.M. 1213 (1989) citing Standard Dry Wall Products, 91 NLRB 544 (1950), infd., 188 F.2d 362 (3rd Cir.1951). And when the Board's findings are based on the ALJ's assessment of the credibility of the witnesses, they will not be "overturned unless they are `hopelessly incredible' or they `flatly contradict either' the `law of nature' or `undisputed documentary testimony.'" NLRB v. Gordon, 792 F.2d 29, 32 (2d Cir. 1986), quoting NLRB v. J. Coty Messinger Service, Inc., 763 F.2d 92, 96 (2d Cir.1985).

Bearing these principles in mind, I now turn to a review of the hearing record and the findings of the ALJ.

II.

During the summer and fall of 1990, William Ness, the Union's president and business agent, made contact with several of respondent's drivers in an attempt to revive an organizing effort that had failed the preceding summer because of a language barrier between him and respondent's largely Spanish-speaking employees. Ness was repeatedly told by the employees with whom he spoke that Vasilios "Billy" Varkos was the person he had to talk to if he was going to be successful in organizing respondent's workers. (T. 43-44)¹. Ness gave his business card to one of respondent's drivers and asked him to deliver it to Zarkos. (T. 45).

In the fall of 1990, Zarkos was in his second period of employment with respondents. Zarkos was originally hired by respondents as an oil delivery man or "driver" in 1985. In 1987, the brothers Robert and Vincent Latora, the principal owners and managers of respondents, were each convicted of charges arising out of attempts to unlawfully evict a residential tenant and sentenced to one-year jail terms. The Latoras placed Zarkos in charge of the garage in their absence. In that capacity, according to Zarkos, he assigned delivery jobs to the drivers and truck maintenance jobs to the mechanics. He could hire employees, but could not fire them unless specifically authorized to do so by Linda "Susana" Wong, Vincent Latora's wife and president of APRA, one of the respondent companies. (T. 317). Zarkos remained in charge of the garage until June 1988, when he was fired by Wong for allegedly stealing from the company. (T. 319). It is stipulated by the parties that during his first period of employment, Zarkos was a supervisor within the meaning of the Act. (ALJ 7).²

In November 1989, shortly after the Latoras were released from jail, Robert Latora asked Zarkos to return to work for respondents. (T. 341-342). According to Zarkos, Robert initially told him that he would be engaged as a driver at a salary of $550 per week. Instead, according to Zarkos, he was employed as a dispatcher at $500 per week. In that capacity, again according to Zarkos, it was his job to assign deliveries to the drivers. Zarkos claims he could not hire employees. However, on the possibly mistaken belief that he could fire employees for disciplinary reasons, he "fired" a driver, Ismael Medina, only to see him immediately reinstated by Vincent Latora. Zarkos says that he was admonished by Vincent Latora that he did not have the authority to fire anyone. Zarkos acknowledged that he did "reprimand employees", but that "all other authority that he used to have during his first period of employment was given back to Vinnie and Bob." (ALJ 8).

Respondents through their witnesses dispute Zarkos' modest description of his duties during his second period of employment, although perceptions differed among the witnesses as to exactly what authority Zarkos possessed. Patrick Novillo, one of respondent's managers, testified that Zarkos was the manager for oil deliveries with the power to hire and fire. (T. 871). Jesus Campos, one of respondents drivers, believed that Zarkos held the title of "manager," but never saw him "discipline, promote, transfer, lay off, recall or reprimand" anyone. (ALJ 8, quoting Campos Affidavit to the Board). Ismael Medina, the driver whom Zarkos attempted to "fire" in a dispute over a missed delivery, testified that "Billy's not my supervisor, just my dispatcher. He just gave me my delivery tickets, that's all." (ALJ 9; T. 519). However, when Zarkos told him he was fired, Medina left work for two days, returning only to pick up his paycheck, apparently believing at the time that he had in...