Extract
Meyers Industries, 493 (1984)
MEYERS INDUSTRIES
Meyers Industries, Inc. and Kenneth P. Prill. Case 7-CA-172076 January 1984 DECISION AND ORDEROn 14 January 1981 Administrative Law Judge Robert A. Giannasi issued the attached decision.The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed cross-exceptions with supporting briefs, after which the General Counsel filed a brief in response to the Respondent's exceptions.The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,1 findings, 2 and conclusions only to the extent consistent with this Decision and Order.3On 4 November 1980, after the hearing and before the judge's decision, the General Counsel, with the Charging Party's concurrence, moved to amend the complaint to include an additional allegation that the unl*aful nature of Prill's discharge is supported by Sec. 502 of the National L'bor Relations Act. The relevant portion of that section states:INlor shall the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions for work at the place of employment of such employee or employees be deemed a strike under this Act.The judge, after considering the arguments of all parties, denied the General Counsel's motion by telegram of II November 1980. The General Counsel and the Charging Party cross-except. We note that counsel for the General Counsel engaged in lengthy argument at the hearing concerning the theory of her case both before as well as after the presentation of evidence, but gave no indication that Sec. 502 formed the basis for any portion of the General Counsel's case. In addition, although counsel for the Charging Party took the position at the hearing that Sec.502 was applicable, counsel for the General Counsel thereafter reiterated that the theory of her case rested on Alleluia Cushion Co., 221 NLRB 999 (1975), and at no time adopted the Charging Party's position. Thus, although we agree with the judge that the General Counsel's motion to amend the complaint should be denied, we do so for the reason that the General Counsel neither raised nor litigated the Sec. 502 issue at the hearing. Accordingly, we affirm the judge's ruling and therefore do not reach the issue discussed in fn. 6 of the attached decision of whether Sec.502 protects an employee in the circumstances of this case.2The 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 Respondent also asserts that the judge's decision is the result of bias. After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in NLRB v. Pittsburgh Steamship Co, 337 U.S. 656, 659 (1949), 'IT]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact.' See generally Jack August Enterprises, 232 NLRB 881 (1977).3 The Charging Party urges, as part of its cross-exceptions, that it be awarded a reasonable attorney's fee for this litigation. When a respondent's defense is dependent upon resolutions of credibility and hence is 'debatable' rather than 'frivolous,' the Board has consistently refused to award litigation costs, even if the respondent has 'engaged in 'clearly aggravated and pervasive misconduct,' or in the 'flagrant repetition of conduct previously found unlawful.'' Heck's Inc., 215 NLRB 765, 767 (1974); see also Tiidee Products, 194 NLRB 1234 (1972). Upon a review of the record, we cannot say that the Respondent's defenses were frivolous.268 NLRB No. 73Relying on Alleluia Cushion Co., 221 NLRB 999, the judge concluded that the Respondent violated Section 8(a)(1) of the Act when it discharged employee Kenneth P. Prill because of his safety complaints and his refusal to drive an unsafe truck after reporting its condition to the Tennessee Public Service Commission. Upon careful consideration, and for the reasons set forth below, we reject the principles the Board ado...See the full content of this document
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