The Sun Co. of San Bernardino, California

THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 515 known as Stations Nos. 23, 24, and 27 , respectively, excluding all other employees and supervisors as defined in the National Labor Relations Act. WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain collectively with us or refuse to bargain with said union as the exclusive representative of the employees in the bargaining unit set forth above. E. W. SAYBOLT & COMPANY, Employer, Dated ............... By .................................................... (Representative ) (Title) This notice must remain posted far 60 days from the date hereof, and must not be altered , defaced , or covered by any other material. THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA and THOMAS L. MULLINS THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA and JOSEPH A. BENNETT. Cases Nos. 21-CA-1365 and 21-CA-1507. June 11, 1953 SUPPLEMENTAL DECISION AND ORDER On March 6 , 1953, the Board issued its Decision and Order' in the above -entitled cases finding that the Respondent had engaged in and was engaging in certain unfair labor practices and ordering that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the purposes of the Act. On April 8, 1953, the Respondent filed with the Board a motion for an order to reopen the record and for permission to adduce additional evidence and for reconsideration of the Board's Order of March 6, 1953. The General Counsel, on April- 23, 1953, filed a memorandum in opposition to the Re- spondent ' s motion to reopen. On May 8, 1953, the Respondent filed a reply to the General Counsel's memorandum.2 1. In its motion , the Respondent requested that the record be reopened for the purpose of taking written interrogatories of Ralph W. Davis, the Respondent ' s vice president , concerning the discharge of Joseph A. Bennett . The Respondent stated that: Davis suffered a heart attack on September 7, 1952 , and was 1103 NLRB 359. 2 The Respondent's request for oral argument is hereby denied as the record , the Re- spondent's exceptions and brief, and the motions and replies thereto, in our opinion, ade- quately present the issues and the positions of the parties. 105 NLRB No 60. 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confined to a hospital ; the hearing , which commenced on September 8, 1952, was adjourned from September 12 to October 15 in the hope that Davis might have sufficiently re- covered to testify at that time; the Respondent ' s counsel was prevented by Davis' illness from discussing with him the facts surrounding Bennett's discharge prior to or during the hearing and for many months thereafter ; at the hearing the General Counsel refused to stipulate as to a statement he had taken from Davis prior to the hearing, thus depriving Respondent's counsel of testimony and evidence of Davis; and the inability to present Davis' testimony deprived the Respondent "of a full and fair hearing and opportunity to be heard." The Respondent further alleged that if Davis were permitted to testify , his testimony would reveal: That when JOSEPH A. BENNETT , one of the charging parties, and RALPH 0. NICKOLAY, Respondent ' s Mechan- ical Superintendent , came to DAVIS' office on the day of BENNETT'S discharge , WARD ARTHURS, foreman over BENNETT , had previously on that morning telephoned to DAVIS, informing DAVIS of the conversations which had taken place between ARTHURS and BENNETT and had informed DAVIS that during these conversations BENNETT had threatened to kill ARTHURS and that ARTHURS had thereby been scared for his life , . . . that when BENNETT and NICKOLAY came to his office the day of the discharge, DAVIS told BENNETT what ARTHURS had told him had occurred and that BENNETT talked to DAVIS for about fifteen minutes or more outlining to him in detail all of the facts of his various conversations with ARTHURS and re- peated and admitted to DAVIS that he had made the state- ment attributed to him by ARTHURS to the effect that he (BENNETT ) had killed people before, and BENNETT then told DAVIS further that he had told ARTHURS that BENNETT had patriotically served his country in the war and had killed men who never did anything to him in their life , that nobody was going to do anything to him now and that ARTHURS could put the shoe on if it fit . . . . that he [Davis ] did not foreclose BENNETT'S complete and de- tailed recitation of all the conversations and difficulties that BENNETT had with ARTHURS, prior to the date of BENNETT'S discharge , but on the contrary he permitted BENNETT to make such statements and comments as BENNETT desired to so do and fully and completely heard him out, and that it was only when BENNETT attempted to bring the ITU intothediscussionthatDAVlStold him he did not wish to hear about the Union , because the Union had nothing to do with it . . . . that BENNETT'S version of his conversation with DAVIS was distorted and contained many untruths. . . . that on hearing from ARTHURS on the tele- phone , he [Davis] was seriously concerned and disturbed by AR T HU R S' report of the threat upon the life of TIIE SUN COMPANY OF SAN BERNARDINO , CALIFORNIA 517 ARTHURS, who was almost twice BENNETT'S age, but that before he took any final action, he was determined to give BENNETT a full opportunity to be heard, which he did; and that he discharged BENNETT for making the threat after fully hearing BENNETT 'S story and for no other reason. That he believed at the time that BENNETT was a man capable of violence , andknewhe was a man possessing a quick, ungovernable temper, and determined that BENNETT was not a person which Respondent cared to have in its employ. The altercation between Bennett and Arthurs occurred on August 22 , 1952. Bennett was discharged on the following day. On August 27 Bennett filed a charge , and on August 28 the consolidated amended complaint , covering the Bennett and Mullins discharges , was issued . It appears that shortly after the Bennett charge was sent to the Respondent , Respondent's counsel telephoned the General Counsel, who investigated the charge, for information about this charge and requested an opportunity to be heard on the matter . The General Counsel made an appointment and, on September 3, afforded both counsel for the Respondent and Davis an opportunity to explain their viewpoints. After consultation with the General Counsel, these individuals took the position that, as the complaint had already issued, and the cases of Bennett and Mullins had been consoli- dated, there was nothing further to be discussed . On September 4 the Respondent submitted its answer to the consolidated com- plaint, with an accompanying statement , sworntobyDavis, that the matters contained therein were true. Thus, while it appears that Davis was unavailable during the hearing, we are not convinced on the record that the Respond- ent's counsel "was prevented by Davis' illness from consulting with him or discussing with him the facts surrounding Bennett's discharge prior to . . . the hearing." In fact Davis , before his heart attack on September 7, met with Respondent ' s counsel and General Counsel on September 3 and, on September 4, verified the Respondent ' s answer to the consolidated amended complaint . It is unlikely that counsel would have an answer verified by an individual, who thereby attested to his knowledge of the contents thereof, without discussing the matter with such individual . In fact, the Respondent ' s counsel concedes that he consulted Davis by the statement in a certificate he filed in support of the instant motion that "I had been informed by Mr. Davis prior to Se tember 7, 1952, that he had made the dis- charge [of Bennett and that he had ample reason for doing so, and I had briefly discussed the facts with him before he was incapacitated by his heart attack." ( Emphasis supplied.) The Respondent also contends in this connection that the General Counsel ' s refusal to stipulate as to a statement he had taken from Davis prior to the hearing deprived the Respondent's counsel of testimony and evidence of Davis. The record estab- lishes, however , that counsel for the Respondent stated at the 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing that , as the General Counsel "had conducted an investi- gation of the Mullins matter and had taken Mr. Davis' statement, that he might be willing to stipulate with me, although I haven't seen what he wrote down , that Mr . Davis would testify , if called, to what was said in his report of the investigation interview with Mr . Davis." Such statement was made in connection with the investigation of Mullins ' discharge , conducted months before Bennett was discharged . As the Respondent is seeking here to establish that the unavailability of Davis' testimony prejudiced its defense to the discharge of Bennett , not of Mullins, we find no merit in this contention. At the outset of the hearing , the Respondent moved to dismiss the consolidated amended complaint or, alternatively , to sever the Bennett case, on the ground that the Bennett charge had not been properly investigated by the Regional Director. When these motions were denied, the Respondent declared that it was not ready to proceed in the Bennett case because of Davis' illness, but declined an adjournment . The Trial Examiner then agreed that a continuance would be granted at the conclusion of the General Counsel ' s case if the Respondent so desired. The General Counsel rested on September 12, at which time a continuance was granted until October 15. When the hearing recommenced, the Respondent stated that Davis' physician still would not permit him to testify. However, it did not request another continuance , nor did it object to proceeding with the case . Rather , the Respondent recalled Nickolay "for some questions which can fill out, in part, what Mr. Davis would have testified to." None of these questions , however , pertained in any manner to Bennett ' s discharge . At the close of the hearing on October 16, the Respondent indicated that it wished it could have called Davis, but it did not request a continuance or urge that the record be kept open until Davis was available to testify. Moreover, neither in its exceptions to the Intermediate Report nor in its brief did the Respondent contend that it was prejudiced by Davis' unavailability or request that the record be reopened to receive his testimony. While the Respondent may have been put at a disadvantage by Davis' unavailability at the hearing , we are satisfied that it was not deprived "of a full and fair hearing and opportunity to be heard." Administrative proceedings cannot be deferred indefinitely because a witness who possesses knowledge of facts germane to those proceedings is unavailable.' This is particu- larly so where other witnesses , who are available , can and do testify as to those facts . Nickolay was called as a witness on behalf of the Respondent after Bennett had testified as to what occurred in Davis' office culminating in Bennett's discharge. Nickolay was present in the office during this entire episode, and was thus available to the Respondent to rebut any of 7 The Respondent submitted a certificate and an affidavit from Davis ' physicians stating that Davis was now sufficiently recovered to testify through written interrogatories, but not indicating when, if ever, Davis could be examined orally. THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 519 Bennett ' s assertions as to his conversation with Davis, or to reveal any further statements that were made in that conver- sation, if Nickolay could do so. He was twice recalled by the Respondent , and yet the Respondent elicited no evidence to meet the contention that Davis failed to accord Bennett full opportunity to present his side of the story.4 In view of the foregoing , and the entire record in this pro- ceeding , we are convinced that the circumstances do not warrant granting the Respondent ' s motion to reopen the record to receive Davis' interrogatories . Accordingly, the motion to reopen for this purpose is denied. 2. The Respondent further requested that the record be re- opened to receive "newly discovered evidence " to be elicited from Arthurs which, the Respondent contends came to Respondent ' s attention after the Trial Examiner had submitted his Intermediate Report [on December 11, 1952 ] and after Respondent had filed its Exceptions to the Intermediate Report and its Brief in support of such excep- tions; that such evidence first came to Respondent ' s atten- tion during a hearing before the State of California, Department of Employment , upon the subject as to whether or not BENNETT was entitled to Unemployment Insurance benefits , on October 30, 1952. This evidence , the Respondent avers, will supplement testimony previously given by Arthurs before the Trial Examiner , and will disclose that a day or two after his discharge , [Bennett ] came to the composing room of Respondent ; that ARTHURS saw him coming and feared that BENNETT had returned to carry out his threat, and because BENNETT was known to have a violent temper , ARTHURS concealed himself in the machine room , turned out the lights , prostrated himself on the floor and hid there , and remained hidden until after BENNETT had left the premises of Respondent. Moreover , the Respondent declared that, if permitted , Arthurs would testify that he "was too embarrassed to admit these facts prior to the Department of Employment hearing." We fail to perceive the basis for the Respondent ' s contention that this evidence was newly discovered . The record establishes that Arthurs , who was called as a witness on behalf of the Respondent after Bennett had concluded his testimony before the Trial Examiner , was extensively examined bythe Respondent's counsel concerning the incident between Arthurs and Bennett which formed the basis for the Respondent ' s defense that it 4In finding that the Respondent had violated the Act by discharging Bennett , the Trial Examiner relied, among other things, upon Davis ' summary discharge of Bennett without allowing him an opportunity to present his side of the story. 291555 0 - 54 - 34 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged Bennett for threatening Arthurs . Arthurs, who stated at the hearing that he was very much at ease on the witness stand, testified on direct examination that the Bennett incident caused him to become highly nervous , that he could not eat, sleep, or drink , and that he therefore consulted a physician who prescribed some pills for this condition . In view of this testi- mony, it is difficult to believe that Arthurs was too embarrassed to testify further that he secreted himself in a room to avoid Bennett , particularly as, within 2 weeks of the hearing before the Trial Examiner , Arthurs revealed these facts in open testi- mony before another administrative tribunal . Accordingly, we find that the testimony which the Respondent now seeks to pro- duce was available at the time of the Board's hearing, and is not newly discovered . We therefore deny this part of the Re- spondent ' s motion. Moreover , the Respondent stated that the evidence elicited at the State board hearing first became known to it after it had filed exceptions to the Intermediate Report and a supporting brief. This is contradicted , however, by the Respondent's con- current statement that this evidence "first came to Respondent's attention during a hearing before the State of California , Depart- ment of Employment , . . . on October 30, 1952," and by the copy of the decision rendered by the referee on November 20, 1952, submitted by the Respondent in support of its motion, which reveals that John B. Lonergan , the Respondent ' s counsel, was present at that hearing and represented the Respondent therein. Furthermore , this evidence was not urged when the Respondent filed its motion to reopen with the Trial Examiner on November 18, 1952, 3 weeks before the issuance of his Inter- mediate Report , nor did the Respondent bring it to the Board's attention in its exceptions to the Intermediate Report filed on December 30 , 1952, or in its supporting brief filed on January 9, 1953. Accordingly , we find untimely the proffer of this evidence over 4 months after the date on which the Respondent was apprised thereof. However, even if this evidence was newly discovered and was timely brought to the Board's attention , we fail to perceive how such evidence could affect our determination regarding Bennett ' s discharge . In its defense to the charge that the Respondent discriminatorily discharged Bennett on August 23, 1952, the Respondent alleged that its sole motivation was based upon Bennett ' s threat to Arthurs on the preceding day. The Respondent can hardly contend that the incident about which Arthurs would testify if the record were reopened , occurring, as the Respondent avers in its motion, "a day or two after his [Bennett's ] discharge " figured in the discharge. Accordingly , as the evidence which the Respondent seeks to introduce through Arthurs ' testimony is not newly discovered, was not timely proffered , and would be irrelevant , we deny the motion to reopen the record for this purpose. 3. The Respondent also alleged in its motion that, if per- mitted, it would show that the Appeals Board of the California TILE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 521 Department of Employment , after a hearing before a referee, ruled that Bennett actually made a serious threat upon the life of Arthurs , that Bennett was therefore not entitled to unemploy- ment insurance benefits because his misconduct justified discharge , and that Bennett was not discharged because of his union activities or membership . The Respondent appended to its motion a copy of the Appeals Board ' s decision , which was rendered on March 20, 1953. While decisions rendered by State unemployment compensa- tion agencies are relevant in Board proceedings , and have some probative value, they are not binding upon the Boards As the Appeals Board stated in the decision upon which the Respondent relies, "The issue before the Trial Examiner was primarily whether or not the employer had engaged in unfair labor practices , while the issue in this proceeding is whether the claimant was discharged for misconduct " within the meaning of the California unemployment compensation statute . Moreover, the Appeals Board did not, as the Respondent suggests, and indeed could not, make a binding determination that Bennett was not discharged because of his union activities , for Congress delegated to this Board exclusive authority to make such deter- minations. We have, however , considered the decision of the Appeals Board , as well as the decision of the referee , and we find nothing contained in the evidence adduced at that hearing which would cause us to alter our finding that Bennett was discharged in violation of Section 8 (a) (3) and ( 1) of the Act . We therefore deny this part of the Respondent ' s motion. 4. With respect to that part of its motion to reopen which is addressed to the issue of fronting , the Respondent stated that, if permitted , it would show that ( a) the International Typo- graphical Union, herein referred to as the ITU, a noncomplying union, solicited and instigated the filing of charges by Bennett and Mullins in furtherance of its campaign to organize the employees of the Respondent ; (b) the ITU gathered evidence to support the charges ; ( c) the ITU worked closely with the General Counsel , outside the hearing, both before and after the complaint was issued ; and (d ) Mullins was andis in the employ of the ITU. In support of its request to reopen , the Respondent urged that the Trial Examiner " prevented " the Respondent from adducing evidence with respect to the issue of fronting by his "attitude and erroneous rulings" upon the relevancy of such evidence , and that the Board took too narrow a view of the Respondent ' s offer of proof with respect to the issue of fronting, which was contained in its motion addressed to the Trial Exam- iner on November 18, 1952. The Respondent was in no way prevented by the Trial Exam- iner from pursuing its inquiry intotheissueof whether Mullins or Bennett was fronting. The transcript of the proceedings before the Trial Examiner shows that employee Thompson, when questioned on direct examination by the General Counsel 5 See Aerovox Corporation , 104 NLRB 246. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as to the number of the Respondent ' s employees present at a particular union meeting , asked an individual sitting at the General Counsel ' s table whether "you want me to tell that?" Thereupon , the following discussion took place: Mr. Lonergan : May we have identified the gentlemanthe witness asked as to whether or not he could answer the question , Mr. Examiner? Trial Examiner Myers : Why ask anybody? If you don't know , tell us . Who do you mean? Mr. Lonergan : I don't know. The witness asked someone who is sitting beside the General Counsel as to whether or not he could answer the question , and I think it is the respondent ' s right to know. Trial Examiner Myers : Who is he, do you know? Mr. Lonergan : I don't know . No one has introduced him. Trial Examiner Myers : To be sure of the identity of the gentleman , I will ask him to stand and give his name. Mr. Reiner : [ counsel for the General Counsel ] I don't think that is necessary . I can identify the gentleman. He is Mr. Joe M. Brown. Mr`. Lonergan : May I ask who he is? Trial Examiner Myers : Put him on the stand , will you, please ? I don't know what is going on here. We are exam- ining a witness . Let's go ahead. Subsequently, Joseph M . Brown, who identified himself as a representative of the ITU , was called as a witness by the General Counsel . On cross-examination by the Respondent's counsel , the following colloquy ensued: Q. Has there been any meeting since [January 10, 1952], in the sense of the meeting of the group who are in your union? A. No, there have been meetings on a small scale, but nothing like that where we have used an outside agency for all who desire to attend. Q. Have you discussed , of course , this problem with the members of your union whose names you have listed--I am thinking particularly of Mr . Bennett and Mr. Mullins. A. Fully. Q. Naturally . Has Mr. Mullins ever given you any of the papers or documents that he obtained in the proof room at the Sun Company, composing room? A. Nothing at all, sir. It is apparent from these , the only references in the transcript which in any manner touch upon the issue of fronting , that the Respondent was not prevented from adducing evidence at the hearing with respect to that issue , but merely failed to do so. In its motion addressed to the Trial Examiner on November 18 , the Respondent for the first time explicitly urged that Mullins and Bennett were fronting, and offered to prove THE SUN COMPANY OF SAN BERNARDINO, CALIFORNIA 523 that the ITU, of which they were members, was not in compli- ance with the Act, that a representative of the ITU sat at the counsel table throughout the hearing and assisted the General Counsel in the conduct of the proceeding, that employee Thompson asked this representative, while being examined, whether he should answer a certain question, and that the Board's Regional Office mailed copies of the official papers in this proceeding to the ITU. The Board, in its decision of March 6, 1953, rejected the Trial Examiner's conclusion that evidence relating totheissue of fronting was not relevant, and found that, even accepting as true the allegations in the Respondent's offer of proof of November 18, as supported by an accompanying memorandum, its exceptions and brief, and the entire record, the Respondent failed to establish that Mullins or Bennett was acting as an agent for the ITU. Nowhere in its exceptions or supporting brief did the Respondent indicate in what manneritwas prevented by the Trial Examiner's "erroneous rulings" from showing that Mullins or Bennett was acting as a front for the ITU. Instead, the Respondent chose to rely upon the allegations contained in its offer of proof filed earlier. The Respondent also suggests that the Board took too stringent a view in construing its offer of proof, and urges that the record be reopened to receive additional proof which, it contends, would show that Mullins "was and is in the employ of" the ITU, and that the ITU instigated the charges and gathered the evidence with respect thereto. The Respondent does not contend that any of these allegations are supported by evidence which it has newly discovered, nor does it explainwhythis evidence was not produced at the hearing. It ill behooves the Respondent, in possession of facts which it alleges would establish that Mullins was fronting, to urge now that the Board reopen the record and receive evidence which, for no apparent reason, it failed to disclose until some 7 months after the hearing, although oppor- tunity for full disclosure was available to the Respondent at the hearing, as well as in allthe subsequent proceedings before the Board. Under the circumstances, the Respondent's motion to reopen the record for this purpose is hereby denied. ORDER IT IS HEREBY ORDERED that the Respondent' s motion for an order to reopen the record and for permission to adduce addi- tional evidence and for reconsideration of the Board's Order of March 6, 1953, be, and it hereby is, denied. IT IS FURTHER ORDERED that the Board's Order of March 6, 1953, be, and it hereby is, corrected to reflect the true name of the Respondent as The Sun Company of San Bernardino, California. Chairman Herzog and Member Murdock took no part in the consideration of the above Supplemental Decision and Order.