Local 9, Int'l Brotherhood of Electrical Workers, 899 (1960)

DECISION AND ORDER

This proceeding arises under Section 10 (k) of the National Labor Relations Act, which provides that :

Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4(D) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen.

On April 24, and December 2, 1959, G. A. Rafel and Co., Inc., herein called Rafel, filed charges with the Regional Director for the Thirteenth Region alleging that Local Union.No. 9, International Brotherhood of Electrical Workers, -AFL-CIO, herein' called Local 9, and its agents, Frank Benner and Robert Fitzgerald, herein called Benner and Fitzgerald, respectively, had engaged in and .were engaging in certain unfair labor practices within the meaning of Section 128 NLRB No. 100.

8(b) (4) (D) of the Act. It was charged in substance that Local 9,

Benner, and Fitzgerald had induced and encouraged employees of Rafel to engage in a strike or concerted refusal to perform services in the course of their employment with an object of forcing Rafel to assign particular work to members of, or employees who have been approved or cleared by, Local 9.

Thereafter, pursuant to Section 10(k) of the Act and Sections 102.89 and 102.90 of the Board's Rules and Regulations, Series 8, the Regional Director investigated the charge in Case No. 13-CD-64 and provided for an appropriate hearing upon due notice. The hearing was held before Allan B. Haas, hearing officer, on July 6, 13, and 21, 1959, and before Herbert Borovsky, hearing officer, on various days between July 27 and December 3, 1959, at which time the hearing was recessed. On December 29, 1959, the Regional Director, having investigated the charge in Case No. 13-CD-77, consolidated the two cases and provided for appropriate hearing thereof upon reconvening of the recessed hearing. Thereafter, the consolidated hearing was held before the said Herbert Borovsky on January 11, 12, and 13, 1960.

Rafel, Local 9, Benner, and Fitzgerald appeared at the hearing and were afforded full opportunity to be heard, to examine and crossexamine witnesses, and to adduce evidence bearing on the issues.' The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed.' 3 During the hearing, Rafel applied for special leave to appeal from certain rulings of the hearing officer. Because a determination would have required a review of the entire record, permission was denied without prejudice to Rafel's right to renew its application after the close of the hearing. Thereafter Rafel requested special leave to appeal, inter aloe, from the hearing officer' s (1) refusal to permit Rafel to adduce the testimony of four additional witnesses concerning Case No. 13-CD-64, ( 2) refusal to recess or adjourn the hearing in Case No 13-CD-64, (3) permitting Local 9's attorney to testify in the absence of Rafel and its attorney , (4 ) denial or Rafel's motion for a recess after the close of Case No. 13-CD- 64 and before starting the hearing on Case No . 13-CD-77 in order to allow Rafel additional time to bring in its witnesses , and (5 ) summarily closing Rafel's case in Case No. 13-CD-77 without the testimony of such witnesses . Even though the hearing was convened on 26 different days over a 6-month period during which this entire -matter was at issue , Rafel failed, as more fully set forth hereinafter , to elicit testimony in support of its position that the object of Local's 9's conduct was unlawful.

There is no indication that any additional witnesses would have offered testimony which could alter our conclusions based on the undisputed facts of these cases. With regard to the testimony by Local 9' s attorney, the record reveals that Rafel and its counsel voluntarily left the hearing in anger and thus waived the right to be present and crossexamine the witness. In any event, the testimony adduced is irrelevant to the issues to be resolved in this proceeding and has been disregarded in reaching our conclusion.

Accordingly, Rafel's application for special leave to appeal from these rulings is denied.

See Fisherman's Cooperative Association, et at., 128 NLRB 62, footnote 14; Kiekhaefer Corporation, 127 NLRB 1381; Houston Sash & Door Company, Inc., 127 NLRB 1089.

2 See footnote 1, supra. In addition, Rafel sought special permission to appeal from the hearing officer's refusal to disqualify himself because of bias, prejudice , and animus against Rafel, as well as improper conduct. The application is also denied as to this ruling In support of its contention , Rafel points to similar charges made on the record by counsel for Local 9. We find it difficult to understand how the hearing...