Appeal From the National Labor Relations Board (Case Nos. 4-CA-6396 and 4-CA-6400).
Aldisert, Adams and Hunter, Circuit Judges. Aldisert, Circuit Judge, Concurring.
This is a petition by Altemose Construction Company (hereinafter "Altemose") and Energy Contracting Company ("Energy"), wholly owned subsidiaries of Altemose Enterprises, Inc. ("Enterprises"), to review and set aside an order of the National Labor Relations Board issued against them on April 18, 1974. The Board, which has cross-applied for enforcement of its order, found that Altemose and Energy were joint employers or a single employer within the meaning of the National Labor Relations Act, and that they violated sections 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by discharging employees John J. Zaleski and Norman Young on February 28, 1973, for engaging in protected union activities. We reverse and remand.
This case arises out of highly unusual circumstances. In the background is the history of an intense and violent labor dispute between Altemose and the Building and Construction Trades Council of Philadelphia, over Altemose's refusal to sign a "subcontractor's agreement" which would obligate it to let subcontracts exclusively to firms using only unionized labor. The dispute reached a climax during the summer of 1972, after Altemose had been awarded the general contract for the construction of a hotel and office building complex in King of Prussia, Pennsylvania, known as the Valley Forge Plaza. In the morning of June 5, 1972, approximately 1,000 men from the Trades Council arrived at the Plaza construction site in buses chartered by one of the Council's member unions and proceeded to destroy vehicles, equipment and other property belonging to Altemose, causing damage in excess of $350,000. Although Altemose immediately obtained a preliminary injunction in state court prohibiting picketing by members of the Trades Council within one mile of any Altemose site or its office building, a second mob descended the following day on the office of Altemose Enterprises and threatened to burn it down. Violence was prevented only through the combined efforts of state and local police. Subsequently, on August 17, J. Leon Altemose was attacked and beaten by members of the Trades Council in broad daylight, while attempting to enter a bank in downtown Philadelphia.
Members of the Trades Council also put pressure on the employees at the construction site to cease working for Altemose. Edward Fitzpatrick, a business agent for one of the member unions in the Trades Council, called one of the subcontractors on the site, Richard Czeiner, and told him that the unions would prefer that he not work there. Czeiner refused to quit, however, and subsequently several of his vehicles were destroyed or damaged by fire bombs. Despite strong security measures taken by Altemose, construction on the project was plagued by sabotage.
As a result of the violence and threats, many subcontractors withdrew from the site and Altemose and Energy had considerable difficulty in obtaining qualified workers willing to risk work there. The shortage of qualified plumbers was particularly acute, with James Dull, the manager of Energy, being the only plumber on the site initially. When at the end of July, Zaleski went to the Altemose offices seeking employment as a plumber, Roger Altemose was pleased and asked if he knew of any other plumbers who would be willing to work at the site. Zaleski mentioned Young's name, and Altemose suggested that both he and Young get in touch with Dull.
After beginning work for Dull, Zaleski and Young were frequently critical of working conditions and were known as the "union men" because of their continued advocacy of unionization. Once, after apparently polling the employees and finding that a majority desired unionization, Zaleski and Young went to see Edward Fitzpatrick (the same individual who had urged Czeiner to quit working on the site, prior to the fire-bombing of Czeiner's vehicles) to seek help in organizing a union. However, Fitzpatrick expressed no interest.
At the hearing, Zaleski testified that, on several occasions during the period immediately prior to their discharge, Altemose officials threatened employees with discharge explicitly because of their "union activities." One occasion allegedly occurred on the evening of February 26, at a meeting called by Leon Altemose at the Riverside Speakeasy to discuss the company's current position with regard to its problems with the Trades Council. Zaleski testified that at this meeting, and at prior ones, Leon Altemose stated that any employees who were found to be engaged in union activities would be "weeded out." Zaleski also testified that later that night, Roger Wheale, the foreman at the site, threatened to send him "down the road in the next day or two" because of his "union activities." Similarly, he testified that James Dull, the manager of Energy, threatened him twice, once on the morning of February 26 and once again on the morning of February 28, stating that he (Dull) might lose his job if the "union activities" going on did not cease.
Finally, on the afternoon of February 28, Dull allegedly called both Young and Zaleski into the plumbing shop and told them that he was firing them because of their "union activities." The testimony of Young and Zaleski was corroborated by two other employees, Richard Thompson and Anthony Stella, who testified that they overheard Dull state that he was firing the other two because of their "union activities." Stella allegedly heard this conversation while standing outside the open door, and Thompson allegedly heard it while standing behind Dull inside the shop.
Dull disputed this account, denying that he told Young and Zaleski that he was firing them because of their "union activities" and stating that Thompson was not in the room at the time and that the door was closed. Dull also said that he fired the two men because of their incompetence, and both he and foreman Wheale testified at length as to the poor quality of the plumbing work done by Young and Zaleski. Counsel for Altemose argued at the hearing that their poor work was due either to incompetence or to sabotage, and he repeatedly stated his belief that the unfair labor practice charges were fraudulent and sought to establish that the two workers were in collusion with the Building and Trades Council.
Judge Bisgyer, the administrative law judge, credited most of the testimony of Young and Zaleski, as well as that of Stella and Thompson, and disbelieved the testimony of Dull and Wheale. Furthermore, he found no evidence of improper intervention or influence by the Building and Trades Council in the particular case before him. He therefore concluded that Young and Zaleski had in fact been discharged for engaging in union activities and ordered their reinstatement with back pay.
We reverse, however, on two grounds: First, we believe that it was an error under the circumstances of this case to deny Altemose's timely motion to transfer the hearing to another location. Second, we believe that this unusual case merits a more thorough scrutiny into the credibility of the witnesses than Judge Bisgyer appears to have made in his opinion. In our view, Judge Bisgyer failed to evaluate several factors which we believe are ...