Mary Anne Bakeries

MARY ANNE BAKERIES Wilber J. Allingham , d/b/a Mary Anne Bakeries and Bakery and Confectionery Workers International Union of America, Ind., Local No. 26 . Case 27-CA-1874 April 28, 1967 DECISION AND ORDER On May 26, 1966, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the conduct of the hearing and to the Decision together with a supporting brief. The Respondent filed a brief in support of the Trial Examiner's Decision. The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error, which would warrant a remand of the case,' was committed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. The Trial Examiner dismissed the complaint in its entirety. His findings rest in large part upon his credibility resolutions, to which the General Counsel has excepted. It is the Board's well- establi shed policy not to overrule a Trial Examiner's credibility determinations unless the clear preponderance of all relevant evidence convinces us that his resolutions were incorrect.2 While the evidence adduced by the General Counsel strongly suggests merit in the allegations of unlawful interrogation, threats, and the granting of wage increases to influence votes in the representation election, we nonetheless find such evidence insufficient to establish a violation of Section 8(a)(1) of the National Labor Relations Act, as amended, in view of the Trial Examiner's credibility resolutions. However, in adopting the Trial Examiner's dismissal of the complaint herein, we do not adopt any part of his Decision dealing with matters relating to the Union's majority status. ' The General Counsel asserts that the Trial Examiner improperly interfered with the presentation of the General Counsel's case, and requests a trial de novo before a different Trial Examiner should the Board find that the present record does not support the violations alleged in the complaint. While the Trial Examiner's questions and comments prematurely and excessively interrupted the General Counsel 's presentation, and the Trial Examiner' s conduct of the hearing is fairly subject to criticism, we find, nevertheless , that the General Counsel was not precluded from presenting evidence and conclude that a new trial is not warranted. 2 Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F.2d 362 (C.A. 3). 207 2. The Trial Examiner found that the General Counsel denied Respondent Allingham a constitutional right to the assistance of counsel by directly obtaining Allingham's affidavit during the investigation of the charges herein. Citing the Supreme Court's decision in Escobedo v. Illinois3 as precedent for such holding, the Trial Examiner also concluded that the right of a Respondent to the assistance of counsel during investigation of charges under the National Labor Relations Act is required by Section 6(a) and Section 12 of the Administrative Procedure Act.4 In the Escobedo case, law enforcement officials took a defendant into custody and interrogated him, in a police station for the purpose of obtaining a confession in a criminal proceeding. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. When the defendant denied the accusation, the police handcuffed him and took him into an interrogation room where, while handcuffed and standing, he was questioned for 4 hours until he confessed. During this interrogation, the police denied the defendant's request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. The Supreme Court held that the statements thus made by the defendant were constitutionally inadmissible. In Miranda v. Arizona,5 the Supreme Court further explored concepts of "criminal jurisprudence" relating to the application of the "privilege against self- incrimination to in-custody interrogation. . . ."S Needless to say, there is no "custodial interrogation" under the National Labor Relations Act such as was involved in Escobedo and Miranda. Unfair labor practice preceedings before the Board are not criminal proceedings, and we affirm our recent holding7 that Escobedo is inapposite to Board procedures. The Trial Examiner therefore erred in holding otherwise respecting the precomplaint investigation of unfair labor practice charges in the present case, and his reliance on the Administrative Procedure Act is also without merit in this connection. Section 6(a)8 of the Administrative Procedure Act does not apply to voluntary statements during the investigation of charges,9 and we thus reject the Trial Examiner's finding that questioning of Allingham concerning such 3 378 U.S. 478. "Administrative Procedure Act, 5 U.S.C. 1001, et seq. 5 384 U.S. 436. 6 Miranda v. Arizona, supra, p. 441. 7Crown Imports Co., Inc., 163 NLRB 24. 3 That section provides: "Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel." [Emphasis supplied.] Attorney General's Manual on the Administrative Procedure Act, pp. 61-62 (Dept. of Justice, 1947); Cooper v. U.S., 233 F.2d 821, 825 (C.A. 8,1956), cert. denied 352 U.S. 837: Suess v. Pugh, 245 F.Supp. 661. 164 NLRB No. 30 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements was misuse of rule 43(b) or that constitutional rights" of Allingham were otherwise subverted or violated. The Trial Examiner stated in his Decision that the Allingham incident is not "an isolated happenstance" but is representative of "a nation- wide practice" of the General Counsel to bypass counsel. He also charged that "for many years" it has been "a favorite tactic of the young advocates in the General Counsel's office" to "mis-use Rule 43(b)" as "a formidable legal weapon" by "forc [ing] an accused to confirm" such statements under oath purportedly in further violation of constitutional rights. Although we have rejected the Trial Examiner's views respecting the applicability of Escobedo in these proceedings, it is noted that Allingham's affidavit was not used under rule 43(b) either as evidence or for impeachment purposes in this case. We also point out that this record wholly lacks support for the Trial Examiner's comments concerning a purported "nation-wide practice" and a general misuse of rule 43(b) by "the young advocates" in the General Counsel's office. We are constrained to mention these matters because of unwarranted aspersions by the Trial Examiner upon the General Counsel. A Trial Examiner's Decision is not an appropriate vehicle for gratuitous personal diatribes, and there is no justification in this record for the gratuitous attack directed by the Trial Examiner at the General Counsel's representative in this case, young regional attorneys generally, and the General Counsel personally. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DOYLE, Trial Examiner: This proceeding, brought under Section 10(b) of the Act, was heard at Denver, Colorado, on November 16 and 17, 1965, pursuant to due notice to all parties.' The complaint in substance alleged that the Company violated Section 8(a)(1) of the Act by certain conduct which will be more fully described hereinafter. The Company duly filed its answer denying the commission of unfair labor practices. At the hearing, all parties were represented by counsel, who were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on ' In this report, the Respondent is referred to as the Respondent, the Company, or by his name, Allingham; Bakery and Confectionery Workers International Union of America, Ind., Local No. 26, as the Union; the General Counsel of the Board and his representatives at the hearing, as the General Counsel; the National Labor Relations Board, as the Board; and the Labor Management Relations Act, as amended, as the Act. the issues, to argue the issues orally upon the record and to file briefs and proposed findings. Upon the entire record of the case and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OPERATIONS OF THE COMPANY It is undisputed that the Company is the individual proprietorship of Wilber J. Allingham,2 doing business under the trade name and style of Mary Anne Bakeries. The Company, for sometime past, has maintained its principal office, plant, and place of business at 25 Broadway, Denver, Colorado, and has been engaged in the business of manufacturing, selling, and distributing its bakery products. In the course of its business, the Company annually sells and distributes products valued at more than $50,000 to Denver Drygoods Company and the May Department Stores Company, d/b/a May-DMF Company, each of which enterprises operates retail department stores having gross annual revenue of more than $500,000 at each said store, and each of which enterprises annually receives goods and materials valued at more than $50,000 directly from points outside the State of Colorado. In the conduct of its business during the past year, the Company received goods and materials valued at approximately $5,000 from points outside the State of Colorado. It is found that the Company is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION It is undisputed and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Undisputed Facts Comprising Background; the Union Organizational Campaign; the Election; the Filing of Objections to the Conduct of Election by the Union It is undisputed that in the latter part of June, the Union, by one of its officers, John D. Nelson, initiated a campaign to unionize the employees of the Company's bakery in Denver, Colorado, exclusive of office clericals, bakery sales clerks, and supervisors. In the late weeks of June, Nelson obtained written authorization cards from nine employees designating the Union as their collective- bargaining representative. It is undisputed that the Union did not make a request or demand upon the employer for collective bargaining; instead on June 29, the Union filed a petition with the Regional Office (Denver) requesting certification as the collective-bargaining representative of the Company's employees in a unit of production employees. Thereafter, the Regional Director requested the employer to furnish the names of all employees in the The complaint dated September 2, 1965, was based on charges filed by the Union on July 22, and amended on August 31. All dates in this Decision are in the year 1965, unless specified otherwise. 2 The formal papers spell Respondent's name as Wilbur J. Allingham, but the correct spelling is Wilber J. Allingham. All documents are amended to show correct spelling. MARY ANNE BAKERIES appropriate unit , who were employed during the week ending June 29. The Company, on July 6, furnished such a list showing the termination dates of 4 employees who had left employment during June, but there remained the names of 19 persons eligible to vote. On July 6, an agreement for consent election was entered into by representatives of the Company, the Union, and an agent of the Board named Hjelle; it was approved by the Regional Director. The election was set by agreement for July 14. On that date, the election was held and 11 voters cast their ballots against the Union, while 3 votes were cast in favor of the Union. There were no challenged ballots. The Union filed timely objections to conduct affecting the election and on August 30, Clyde F. Waers, Regional Director, Region 27 (Denver, Colorado), filed his Regional Director's report on objections, which found that the Company had given certain wage increases during the period immediately preceding the election, and for that reason, he set the election aside. Thereafter, the instant complaint issued. The issues presented for resolution are: (1) Whether the Company engaged in interrogation, threats, and the granting of pay increases to employees, in order to influence employees in the election, thereby violating Section 8(a)(1) of the Act. (2) Whether the Union represented a majority of the Company's employees in an appropriate unit for collective bargaining , and a -bargaining order is the appropriate remedy in view of the facts found in this case. The General Counsel takes_ the affirmative position on these issues, and counsel-for the Company the negative. B. Alleged Interrogation and Threats To support the allegations of the complaint, the General Counsel called as witnesses several of the employees. In general, these witnesses were not satisfactory, because they seemed to exhibit vagueness and uncertainty as to vital portions of their testimony. 1. Alleged threat to Employee Harvey Leonard Vaughn testified that he was employed as a baker helper. He first heard about the Union " sometime in June" from another employee. The General Counsel then asked Vaughn if he had overheard a conversation between Allingham, the Respondent, and employee Alvin Harvey, "some time during the last part of June or the early part of July." As to the conversation, Vaughn testified as follows: A. Yes, Mr. Allingham was talking, Al and he said, "I heard you were getting a union up," and Al said, "It is nothing to me," and he says we was in the union propositioned and that's when Al told him. Then he questioned Alvin and he said Alvin and them says, "Oh, well, why don't you go-you go borrow money. Why don't you go down to the union and borrow money." That's all I heard. When Vaughn was asked if this conversation occurred during the union campaign or afterwards he replied, "I think it was before the union campaign if I'm not mistaken." On cross-examination, Vaughn said this conversation took place before Nelson, the union representative, started the campaign for the Union. Finally, Vaughn testified that Allingham said, "If you went the Union, you go borrow money from them." Alvin Harvey was called as a witness by the General Counsel. Harvey testified that he signed a union authorization card for Nelson at his (Harvey's) home. It is 209 noteworthy that Harvey, in the course of his testimony, was not asked any questions concerning the conversation with Allingham, which Vaughn related. Allingham denied that any such conversation occurred. In the absence of corroboration by other witnesses, I cannot accept this jumbled testimony of Vaughn which I deem unreliable. 2. Alleged interrogation of Herbert Peter L. Herbert testified that he was employed by the Company as a bakery and oven man and that he helped out in the training of new employees when they came on the job. His work shift began at 6:30 in the evening and ended at 2:30 in the morning. He was under the supervision of Robert Gendill. Gendill gave him some orders, but on occasions, Allingham called him during the evening and gave him additional instructions . Herbert is employed on Friday, Saturday, and Sunday evenings only. This witness was questioned on direct examination as to a phone call from Allingham to the witness on June 27. He said he did not remember any phone call from Allingham to himself on that date. The witness then testified that on the next night, June 28, Allingham phoned him at the bakery and said he was coming down to see the witness and employees, Smith and Jackson. Allingham came to the bakery and called the three employees to the office. There, he told them that he had heard that they wanted a raise. He said that "things weren't too good ... the business had been off .... but he agreed to give us a little raise, if we would accept the raise." The three employees agreed to accept the raise. Herbert testified that the employees had not asked for this raise. The direct examination then went back to the subject of the alleged phone call from Allingham to the witness on June 27. The witness was asked if Allingham had mentioned the Union in this phone conversation. The witness replied, "I think he asked me something about it, what did I think about it, what do I think about it, is about all." The General Counsel then confronted the witness with an affidavit which he had given to an agent of the Board for the purpose of refreshing his memory. The witness again replied , with regard to that conversation, "I'm not quite sure what went on." "I thought he mentioned something about the Union, but I am not sure." This testimony of Herbert's, I cannot accept as the basis for any finding. Herbert, as a witness , seemed unsure and vague, and his self-contradictions render his testimony valueless. In view of Allingham's testimony on this point, which I credit, I find that Herbert was not interrogated about the Union by Allingham. This testimony had an additional purpose. By it, the General Counsel had hoped to establish knowledge on the part of Allingham, as of June 27, that the Union had begun organizing his employees. As the testimony illustrates, this effort was in vain. 3. Alleged interrogation of Beaty James Beaty , called as a witness by the General Counsel, testified that he was employed at the Company as a mixer. The witness testified that he quit on June 30, at which time he had a conversation with Allingham, but when asked to give the conversation , the witness replied, "Well, I don't remember all of it, the most of it was just personal - between him and I." -A`s ced -to give his west recollection , Beaty said, "Well, he asked me something about signing a union card, and I told him I did. And he said something else-`I didn 't think you was that kind of a person.' I imagine in a flair of anger but I don 't know what 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he meant by it. And then awhile later, he came back and, oh, he said he wasn't paying me my salary which was $125.00 a week plus a life insurance policy which he paid half of, which I imagine he said in anger." An objection and ruling interrupted at this point, then the witness continued, "Well, he came back later and I told him just to give me the days' pay that I had coming and we would call it quits. And he said, `Okay, you tell Bob to get somebody else to replace you.' So I did and I worked the rest of the day and that was all." On cross-examination, Beaty admitted that a few days prior to this conversation with Allingham, he had heard that Gendill, the foreman, was going to change his work hours from the day shift to the night shift. He had a night job working at another bakery, so he did not like this rumored change in working hours. When he engaged in the conversation with Allingham, he was angry because of the rumored change in his hours, and voluntarily quit. No one in management had told him that his hours were to be changed. A few weeks later, Allingham phoned Beaty and offered him his old job, and a week or so later, Beaty called Allingham and accepted the job. He was employed by Allingham at the time he testified. Allingham testified in his own behalf. He denied categorically having a conversation with any employee in which he talked about the Union. He explained that he did discuss his life insurance policy with Beaty at the time Beaty quit. Allingham testified that, in this conversation, he pointed out to Beaty that if he quit he would then lose the benefit of the life insurance policy. Allingham denied that the discussion about Beaty's quitting and the insurance policy had anything whatever to do with the Union. It is undisputed that Beaty's service with the Company was ended by his voluntary quitting on June 30, and that he was not an employee eligible to vote in the election which was held thereafter. The General Counsel made no claim that Beaty's quitting was a violation of the Act. Upon a consideration of all the evidence in the case, and the testimony of Allingham, I find that the evidence is insufficient to establish that Alhngham interrogated Beaty as alleged in the complaint. C. The Increases in Wages Given to Employees It is undisputed that certain raises in pay were given to certain employees. The General Counsel contends that these raises were given to influence the employees' votes in the election, while the Respondent contends that these increases were given for valid economic reasons. 1. The raise to Harvey Alvin Harvey testified that his employment with the Company was his first job after graduating from high school. In the course of his employment, Baird, a foreman for the Company, urged Harvey to enroll at Emily Griffith Opportunity School, conducted by the Denver public schools, in a course on bakery sanitation . Baird told Harvey that if he would take the course and receive his diploma, that the Company would give him a raise. Harvey completed the course in late May, and thereafter reminded Baird of his promise to raise his pay. During the weekly pay period beginning June 30, Harvey was given an increase of 10 cents per hour to $2.10 per hour. There was no testimony contrary to this of Harvey. 2. The raise to Herbert, Jackson, and Smith It was undisputed that the Company gave a 10-cent-per- hour raise to employees Peter Herbert, Gerald Jackson, and Paul E. Smith during the payroll period beginning June 23. Allingham testified that these men were employed on the night shift and that the Company also employed a moonlighting employee by the name of Sam Weddle. Allingham said that this raise was given to these men when Baird, the then foreman, reported to him that there was dissatisfaction among these three night workers because Sam Weddle, who was helping out part time, wasi being paid $2.50 an hour, which was the same as Peter Herbert received and more than Jackson or Paul Smith received. These three night workers had also complained to Baird that they should receive more pay than day workers; that there should be a night -time differential. He sent for these three men on June 28, and told them that business had not been going particularly well, but that he would give each of them a 10-cent-per-hour pay increase. Herbert's testimony as to the raise has been reviewed previously. Gerald E. Jackson, as a witness for the General Counsel, said on direct examination that this raise was given as related by Herbert, but on cross-examination, he said that Sam Weddle, a new part-time man on the night shift, had been bragging that he was making more than the witness, so three senior employees complained to Baird about this. Allingham then called the men into the office, showed the books to them so that they could see what Sam Weddle was being paid, and then offered them the raise. Paul E. Smith, the third employee involved in this incident, did not testify. 3. The raise to LaPoint Allingham also testified that he gave a raise of 20 cents an hour to Raymond LaPoint in the pay period beginning July 6. Allingham testified that on that date LaPoint threatened to quit unless he received a raise immediately, and on that date LaPoint was the only deliveryman that the Company had, the second deliveryman was on vacation. Since it was necessary to distribute the Company's products, Allingham had no alternative but to give LaPoint his demanded raise. There was no testimony contrary to this of Allingham. LaPoint did not testify. 4. The raise to Jones Allingham also testified that he gave an increase of approximately 10 cents per hour to employee Bobby Jones. This raise was given in the pay period beginning July 27. Jones did not testify. Allingham said that Jones had asked for a raise because he was being harassed by a multiplicity of creditors, and his pay was garnisheed by six creditors. These attachments of his pay cut down Jones' take-home pay, so that Allingham was continually helping him out by paying some obligations and taking it out of his pay. In this instance, he advanced $50 as a loan to Jones to pay the garnishees, and gave Jones a raise so that Jones could repay the loan; otherwise, Jones would have been no better off. It should be noticed that this raise to Jones occurred some 2 weeks after the election, which was held on July 14. D. Knowledge of the Company as to the Start of the Union's Organizational Campaign The testimony in relation to the above-alleged unfair labor practices must be considered in relation to two MARY ANNE BAKERIES 211 specific dates. One is the date on which the Company first learned of the Union's organizational campaign. As noted previously, the General Counsel labored with witness Herbert to place this date as June 27, as supposedly evidenced by the conversation between Allingham and Herbert on that date. That effort, I deem a complete failure. However, the petition of the Union was filed on June 29, and if mailed promptly, would have been received in the ordinary course of business on June 30. Counsel for the Company, in a statement in open court, said it was received by the Company on that date. The second date is the date of the election, July 14. E. Alleged Majority Status of the Union At the hearing, the General Counsel contended that the Union had a majority status in the unit of production and maintenance employees as of June 28. In support of that contention , he put into evidence the signed authorization cards of nine employees; the first of these were signed on June 23, and the last on June 28.3 It is undisputed that on July 6, Allingham and his counsel Maley, for the Company, met with John D. Nelson, business agent for the Union, and Douglas R. Hjelle, a field examiner for the Board, at the offices of the Board in Denver, Colorado, and in the course of a conference, executed an agreement for consent election. On this date, pursuant to a request of the Regional Director, the Company supplied to this conference a list of employees on the payroll. The representatives of the parties checked over the payroll and agreed that there were 17 eligible voters.4 The eligible voters are listed as: Burr Baird Raymond LaPoint Eileen Chadwick Ed Morikawa Ruth Evans Theodore Pate Robert Gendill Paul Smith Alvin Harvey Ed Schaefer Odell Haynes Thomas Tyler Peter Herbert Leonard Vaughn Gerald Jackson Henry Wiese Bobby Jones It should be noted in connection with this exhibit that the names of the following employees are written on the list, but crossed out, and after the name, the date of termination of service with the Company. The names and dates are: Jim Beaty 6/30 Jim Chambers 6/23 Michael Duran 6/26 Daniel A. Jones 6/25 Sam Weddle Terminated It should also be noted in connection with this eligibility list that the names of eligible employees to the number of 14 have a check mark in red and a check mark in green opposite the names of the eligible voters, who actually voted in the election. The employees who were eligible, but not voting were: Ed Morikawa Ed Schaefer Thomas Tyler At the hearing, when the Trial Examiner suggested that counsel stipulate that at the conference on July 6, Maley, for the Company, Nelson, for the Union, and Hjelle for the Board, had agreed on an eligibility list for the election, the General Counsel refused to join in such a stipulation. He made no claim that the Board's representative Hjelle, at the conference, had made a mistake, or been the victim of a misrepresentation, or fraud, but he insisted that he had the right to attack the eligibility list as agreed upon in the preelection conference. He stated that his object was to establish that one of those considered as eligible voters at the time of the conference and at the time of the election, was in truth a supervisor and not eligible. When the General Counsel refused to enter the stipulation, the Trial Examiner requested Respondent's counsel to testify to the pertinent facts, which he had offered to do, when confronted with this situation. Maley testified, and in the course of his testimony, Nelson of the Union, confirmed the accuracy of Maley's testimony, that all parties entered a binding agreement on the eligibility list. The General Counsel offered no contrary evidence, although Hjelle, the representative of the Board at the conference of July 7, was frequently in and out of the hearing room in the course of the conference. Upon the undisputed testimony, I find that the General Counsel agreed to the list of eligible voters. Upon the documents in evidence and the testimomy of Maley and Nelson, I find that at the time of the election and at the time of the hearing, there were 17 employees in the appropriate unit. As previously noted, to support his contention that the Union had a majority of the employees in the appropriate unit by June 28, the General Counsel introduced into evidence authorization cards of nine employees. It should be noted that Beaty, who signed one of the cards, voluntarily quit on June 30. At the conference on July 7, at which the agreement for consent election was signed, and at which the eligibility list was determined, Beaty's name was crossed out and the notation evidently referring to his termination-6/30-was placed after his name. From the above, it would seem clear that all parties at the conference of July 7 were aware of the fact that Beaty had quit employment and was no longer in the appropriate unit. Under the circumstances, I find that Beaty's card cannot be counted in the determination of majority status of the Union. Further, in his effort to prove majority status for the Union, the General Counsel seeks to repudiate the eligibility list agreed upon by representatives of the Company, the Union, and Hjelle of the Regional Office on July 7, and seeks to eliminate from the list of eligible voters the names of Baird and Gendill on the ground that both of these are supervisors. I cannot agree that the General Counsel's claim on this point can be seriously considered. In my judgment, the General Counsel of the National Labor Relations Board cannot play fast and loose with his commitments to counsel, after a passage of time, honoring his commitments , when it suits his prosecution purposes, and repudiating them when he deems it advantageous. These cards were signed by these employees on these dates Ruth Evans 6/28/65 Names Date Card Signed Bobbie Ray Jones 6/28/65 Peter L Herbert 6/23/65 Raymond LaPoint 6/28/65 Paul Edward Smith 6/23/65 Jimmie D Beaty 6/28/65 Gerald E Jackson 6/24/65 " See G C. Exh 4 for identification, redesignated Resp Exh 1, Alvin D Harvey 6/25/65 and under that designation received in evidence Odell Haynes 6/25/65 298-668 0-69-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Here Hjelle conferred with all parties and agreed upon an eligibility list. The agreement for a consent election was premised on this agreement, and the Regional Director approved the agreement for a consent election, and that in fairness, equity, legal ethics, and law should end the matter. It may suit the General Counsel's purpose at the time of hearing to repudiate what his colleagues or office mates have done or approved, but ethical and legal procedures require that agreements between counsel and the parties be honored by all who enter into them. This is especially true in the case of representatives of the U.S. Government, who are held to the highest standard of legal ethics in dealing with its citizens. If the General Counsel contends that he is not bound by the ethical and legal standards imposed on all other lawyers, he should publicly claim such special privilege or right, so that prospective respondents and their counsel will know how to deal with the General Counsel and his agents. For that reason, the Trial Examiner will not consider the evidence introduced by the General Counsel on this point. Furthermore, the complaint herein gave no notice to the Respondent that the General Counsel would attempt to repudiate the agreed-upon eligibility list and eliminate Baird and Gendill from it. Therefore, I find that on July 7 there were 17 eligible employees on the list to which all parties agreed, and that the list of eligible voters remained the same at the time of the election, and at the hearing. The situation being resolved as related above, the proof of majority offered by the General Counsel is short of a majority. With the card of Beaty eliminated because of his quit, the General Counsel has placed in evidence only eight valid designation cards of employees of a unit of 17 employees. At the hearing, the General Counsel attempted to make up this deficiency by offering in evidence the Union's account cards of dues collected from employees Schaefer and Morikawa. Both of these men have paid dues to the Union from a date in the past, up to and including the present. But, the undisputed facts in the record concerning these men are: (1) Their employment with the Company is a "moonlighting" job. Each testified that, during the day, they were employed at another bakery, where the bakery and the Union had a contract requiring the payment of dues to the Union on and after the 31st day of employment. (2) It is undisputed that neither employee signed a designation card for the Union at Mary Anne Bakeries. (3) It is also undisputed that neither employee voted in the election at Mary Anne Bakeries, although both knew the date and time of election, and both knew they were eligible to vote in the election. The General Counsel, at the hearing, stated that such facts should not be considered in determining majority status. He claimed that once an employee paid dues to the Union, he had designated the Union to represent him at all places, and with all employers thereafter. I cannot accept the General Counsel's argument although it finds some ostensible support in Board cases. To the Trial Examiner, the General Counsel's argument is as sensible as arguing that Nixon should be declared the Governor of California because, in the last election, there were over 100,000 5 Rule 43(b) of FRCP states: SCOPE OF EXAMINATION AND CROSS-EXAMINATION A party may interrogate any unwilling or hostile witness by leading questions . A party may call an adverse party or an officer, director, or managing agent of a public or private registered Republican voters who did not vote. Furthermore, the payment of dues is compulsory under the union bakery contract, so, in logic, I cannot agree that a compulsory payment, a failure or refusal to sign a designation card, and a failure to vote, after notice, can add up to a voluntary designation of the Union as the representative of these men. For the reasons set forth above, I find that the Union never possessed a majority in the appropriate unit. Evidence The General Counsel is restricted in his cross- examination by the Trial Examiner. The rule of Escobedo v. Illinois applied in this proceeding. As should be remembered, the election herein which the Union lost was held on July 14. On July 20, the Union filed objections to conduct affecting the results of the election and on August 30, the Regional Director, Region 27 (Denver, Colorado), set aside the election. On August 31, the following day, the Union filed a first amended charge against the employer which became the basic charge for the complaint herein. This initiated the Union's attempt to avail itself of the Board's decision in Bernel Foam Products Co., Inc., 146 NLRB 1277, to recapture the bargaining rights which it had lost in the election of July 14. Upon the filing of this charge, the Regional Office instituted its investigation, which as a feature, used the "Skip Counsel Technique." The Regional Director assigned Field Examiner Douglas R. Hjelle to investigate the charge. On July 30, his investigation took him to the shop of the Company, where Hjelle and Allingham (without the assistance of his counsel, Maley) had a lengthy conversation as to the allegations in the Union's charge and the events leading up to the election. This conversation was reduced to writing by Hjelle and at his request, Allingham signed and swore to it. It must be remembered at this point that among the allegations of the charge, were allegations that Allingham "threatened" employees and granted "wage increases deliberately timed to discourage employees from forming or joining a union." It must also be remembered that Hjelle was the representative of the Board who had conducted the conference on July 7, and had met, been introduced to, and had done business with, Maley, as counsel for Allingham. At the hearing, the General Counsel called Allingham as an adverse witness under rule 43(b) of the Federal Rules of Civil Procedure for the district courts of the United States.5 Under rule 43(b), the General Counsel proceeded to take each wage increase and elicit from Allingham the circumstances Allingham claimed to justify the giving of the raise. This went quite smoothly for some time until Allingham disagreed with the General Counsel as to why a certain raise was given. At that point, the Trial Examiner, for the first time, realized that the General Counsel was conducting his examination from a statement given by Allingham to Board Agent Hjelle on July 30. At that point, the hearing was recessed. corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief. MARY ANNE BAKERIES 213 Later, however, Allingham returned to the stand, and when his examination returned to his statement, the procedural curiosity of the Trial Examiner was aroused and he decided to determine if the General Counsel's agents "had ignored or bypassed the legal representative of Allingham" to get the statement from Allingham, or if Maley's absence at the time the statement was taken was due to fault or choice of Allingham or his counsel.6 In his endeavor to ascertain the circumstances under which Hjelle took the statement dated July 30 from Allingham, the Trial Examiner first asked Allingham, if prior to Hjelle taking the statement from him, Hjelle had informed him that he had a right to counsel. The witness misunderstood the Trial Examiner's question and replied that on his first contact with Hjelle that he had asked Hjelle if he "needed a lawyer" and Hjelle replied, "Well, I think you should." This, obviously, referred to the time of the Union's petition early in the history of this proceeding, so the Trial Examiner asked the following question, and received the following answer: Q. No, no, I am going back to the date of July 30 on the day that you talked to Mr. Hjelle, and he wrote out a statement and you signed it, on that date and prior to that statement did Mr. Hjelle inform you that you had a right to be assisted by counsel? A. No, I didn't even know this was for any record at all.7 Shortly thereafter, counsel for the Company stated: Mr. Maley: The ethics [which] the government attorneys abide by is a different ethical standard than we have in the State of Colorado. I don't know what they have in the federal, but it is different than we have. We don't take statements of clients without the attorney being present. The Trial Examiner, at this point, discussed his concern with the constitutional rights of the Respondent in the light of the decision of the Supreme Court of the United States in Escobedo v. Illinois, 378 U.S. 478, and though the ruling is not explicit in the transcript, counsel for the parties by that discussion of the Trial Examiner understood that he had ruled, precluding the General Counsel from further cross-examination based on Allingham's statement, and ruled that Allingham's statement was inadmissible in evidence because it was taken by Board Agent Hjelle in violation of Allingham's right "to the assistance of counsel" under the Sixth Amendment of the Constitution of the United States as defined by the United States Supreme Court in Escobedo v. Illinois, supra. At this point, the Trial Examiner deems it expedient to explain his reasons for this ruling. The Escobedo case redefined the constitutional rights of those accused of a violation of Federal law; it redefined that phrase contained in the Sixth Amendment "to the assistance of counsel." The facts in the Escobedo case are relatively brief, but graphically illustrate the principles of the Court's ruling. Escobedo was arrested in connection with the fatal shooting of his brother-in-law. On his first arrest, shortly after the shooting, he made no statement and was released after his lawyer had obtained a writ of habeas corpus from the State court. Some 11 days later, he was arrested again. He made several requests to see his lawyer who was present in the police building, but despite the efforts of both, the accused was refused access to his counsel. Escobedo was not advised by the police of his right to remain silent and, after persistent questioning by the police, made a damaging statement to an assistant State's attorney, which statement was admitted in evidence in Escobedo's trial. Mr. Justice Goldberg delivered the opinion of the Court in the Escobedo case. Early in his opinion, Justice Goldberg stated the question presented by the case in the following language: The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner's request to consult with his lawyer during the course of an interrogation constitutes a denial of "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S. 335, 342, and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation. After discussing the holding of the Court in Massiah v. United States, 377 U.S. 201, the opinion of Justice Goldberg states the following, which in my judgment can also be said of administrative proceedings: We have also learned the companion lesson of history that no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights. No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system. [Emphasis supplied.] We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied "the Assistance of Counsel" in violation of the Sixth Amendment to the Constitution as "made obligatory upon the States by the Fourteenth Amendment," Gideon v. Wainwright, 372 U.S., at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. At the hearing, the implications of the decision in the Escobedo case, were in the mind of the Trial Examiner because of the consequences in administrative proceedings resulting from the United States Supreme Court decision in Jencks v. United States, 353 U.S. 657, which concerned the right of the accused to have full access for the purposes of cross-examination to pretrial statements given to the Government by Government witnesses. Prior to the Jencks decision, the regulatory agencies in administrative proceedings had uniformly disregarded those rules of evidence and those 6 In recent years, the American Bar Association has 6(a) of the Administrative Procedure Act, hereafter set forth complained of this conduct in the Regional Offices. See also Congressman Walter's explanation as to the meaning of section P 165 of the transcript of testimony 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constitutional rights, usually applied to insure a fair administration of justice in criminal cases. This disregard by the Board and other agencies of these rules and rights was based on the shibboleth that an adjudication under section 7 of the Administrative Procedure Act was not a criminal proceeding, ergo, the agencies had to give no respect to those rights and rules. This contention and the shibboleth were recently eliminated from administrative law by decisions of the circuit courts. First , in its decision in Communist Party v. Subversive Activities Control Board, 254 F.2d 314, the Circuit Court of Appeals for the District of Columbia applied the Jencks rule in that administrative proceeding . Shortly thereafter, the Board received a similar ruling from the Circuit Court of Appeals for the Second Circuit in N.L.R.B. v. Adhesive Products Corp., 258 F.2d 403. These decisions appear to settle the question as to whether regulatory agencies have to respect constitutional rights and rules of evidence that protect those accused of wrongdoing by those agencies. The rationale of the circuit court cases seems to be that an administrative adjudication pursuant to section 7 of the Administrative Procedure Act is akin to a criminal proceeding in that the proceeding involves an investigation and prosecution of an accused by a Federal investigator and prosecutor for an alleged violation of public Federal law which may result in an order issued against the accused by a Federal regulatory agency, which is enforceable by a decree of a U.S. Circuit Court of Appeals, in contempt , which may involve both or either , fine or imprisonment . And, that since the types of cases were so similar, the accused in either criminal cases or administrative proceedings should have the same rights to insure fairness of investigation and prosecution. Furthermore , in my judgment , the Administrative Procedure Act and its legislative history require that Respondents be afforded this protection. Section 6 of the Administrative Procedure Act reads as follows: 6(a) Appearance.-Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied , represented , and advised by counsel or, if permitted by the agency , by other qualified representative. Every party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding. So far as the orderly conduct of public business permits, any interested person may appear before any agency or its responsible officers or employees for the presentation , adjustment, or determination of any issue , request, or controversy in any proceeding (interlocutory , summary, or otherwise) or in connection with any agency function. Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties or their representatives . Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or represent others before any agency or in any agency proceeding. In the House debate on the Administrative Procedure Act, Congressman Walter, one of the sponsors of the bill, 8 Cong. Rec., Vol . 92, No . 98, p. 5757 (Leg. Hist., p. 362). 8 (Leg. Hist., p. 231). gave this explanation of the scope of section 6(a):8 Section 6(a) deals with the right of parties to have the advice or representation of counsel or, to the extent that agencies lawfully permit it, representation by nonlawyers . The representation of counsel contemplated by the bill means full representation as the term is understood in the courts of law. Counsel may thus receive notices, decisions, and awards. Agencies are not authorized in any manner to ignore or bypass legal representatives that parties have selected for themselves pursuant to this section. The section also confers a statutory right for any interested person to appear before any agency or its responsible officers at any time for the presentation or adjustment of any matter, and this is particularly important as-among other things-authorizing the settlement of cases in whole or part . It also requires agencies to proceed with reasonable dispatch. [Emphasis supplied.] If there remained any doubt about the right of Allingham to the assistance of counsel , Maley, at all stages of this proceeding, it seems to be utterly disspelled by the final section of the Administrative Procedure Act, section 12. This section reads as follows: Sec. 12. Nothing in this Act shall be held to diminish the constitutional rights of any person or to limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, all requirements or privileges relating to evidence or procedure shall apply equally to agencies and persons. If any provision of this Act or the application thereof is held invalid, the remainder of this Act or other applications of such provision shall not be affected. After the quoted passage, section 12 deals with the time at which various provisions of the Act shall take effect. The Attorney General' s statement as to section 12 states the following:" Section 12 : The first sentence of section 12 is intended simply to indicate that the act will be interpreted as supplementing constitutional and legal requirements imposed by existing law. [Emphasis supplied.] Congressman Walter's explanation of section 12 is as follows: t ° The final section of the bill provides that nothing in it is to diminish constitutional or other legal rights, that requirements of evidence and procedure are to apply equally to agencies and private persons .... Lest the Board or the circuit court think that this disregard of Allingham 's constitutional right in this investigation and prosecution, is an isolated happenstance of the General Counsel's staff, let me refer to one additional fact. The American Bar Association has a standing committee named , "On Practice and Procedure under the National Labor Relations Act." Its purpose is to confer with the General Counsel and the Board, and by joint effort to improve the administration of justice in cases before our agency. In the American Bar Association, Section of Labor Relations Law, 1965 Proceedings, Miami Beach, Florida , published by the American Bar Center, Chicago, Illinois, the report of the above-named committee contains the following: 10 Cong. Rec. Vol. 92, No. 98, p. 5760 (Leg. Hist., p. 371). MARY ANNE BAKERIES 215 II. IMPROVEMENT IN BOARD PRACTICES AND PROCEDURES A. Investigation Procedures It was reported to the Committee that in the investigation of unfair labor practice charges in certain regions, despite formal notice of appearance entered by respondent counsel and advice that officers, representatives, agents or employees of respondent would be made available for interview by field examiners provided counsel was present at such interview, the Region followed the practice of conducting such interviews at the homes of the interviewees without notice to counsel or providing opportunity for his presence. The Committee opposed the practice and requested the General Counsel of the Board to desist from the practice. The General Counsel assured the Committee where the desired interviewees were produced promptly and there was no attempted evasion or stalling tactic, respondent counsel would be accorded the courtesy of notice of the interviewees desired and the opportunity to be present, but that no hard and fast policy could be laid down. The Committee was not satisfied with these answers, and intends to continue to be watchful with respect to this problem. [Emphasis supplied.] The labor bar is concerned with the General Counsel's nationwide practice of bypassing Respondent's counsel on the basis of professional ethics, but the concern of the Trial Examiner is based in constitutional law because in my judgment, the decision in Escobedo v. Illinois, supra, requires that in administrative proceedings, a statement taken from the Respondent, without the Board agent affording to the Respondent his constitutional right to the assistance of counsel may not be received in evidence, or used in cross-examination, or if any part of such a statement is used as evidence it may not be considered by the Trial Examiner in making his decision. Pursuant to that ruling, I have disregarded all testimony elicited from Allingham based on his statement to Board Agent Hjelle, dated July 30. That the conduct of the Board's agent under discussion may constitute a violation of the Canons of Ethics of the American Bar Association is an entirely different question. Mr. Justice Goldberg in the Escobedo decision, supra, mentions the similar question involved in that case. The canon of ethics involved in both the Escobedo case, and in my judgment, this case, is the same. The canon reads as follows: Canon 9. A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should only deal with his counsel. Whether the conduct of the General Counsel under scrutiny in this case and similar conduct in other "Skip Counsel" cases constitute violations of the A.B.A. Canons of Ethics are for that body to decide in appropriate disciplinary proceedings directed to the General Counsel, Washington, D.C. The Trial Examiner wishes to note that his ruling on this point is in no regard a criticism of the professional conduct of the young men involved in the investigation or prosecution of this case; they follow the orders of the General Counsel. They are his subordinates, and I am sure that the General Counsel, Mr. Ordman, will not try to evade responsibility for the conduct here examined. This question arises because of new decisions of the Supreme Court, which in the Trial Examiner's opinion, must bring about changes in the archaic, and now declared to be unlawful, investigatory procedures of the General Counsel's office, which antedate the Administrative Procedure Act, the Taft Hartley Act, and the Supreme Court cases cited. In the dynamic world of labor relations there is constant change, and in the Trial Examiner's judgment, the new Supreme Court cases must result in a change in administrative investigations and prosecutions, in which the constitutional rights of Respondents are respected. Further, it should be noted that the use of rule 43(b) is a favorite tactic of the young advocates in the General Counsel's office who prosecute labor cases. To be able to force and require a person to testify against his own interests is a formidable legal weapon. However, in my judgment, when rule 43(b) is used to force an accused to confirm or deny, line by line, a previously taken statement, which has been taken in violation of the accused's right "to the assistance of counsel," the procedure itself then becomes a different and distinct violation of the accused's protection under the Fifth Amendment, against being forced or required to testify to facts which degrade or incriminate him. As illustrated here, the hapless accused, once he has signed the damaging statement, is forced under 43(b) to confirm it, or have the statement entered in evidence against him, not only for impeaching purposes, but as evidence to establish his guilt. In my judgment, the General Counsel has misused 43(b) for many years. The numbers of Respondents who have been required under 43(b) to testify to degrading and incriminating facts is legion. It may be argued that when a business man or union official has been forced under oath by virtue of 43(b) to confess a violation of the National Labor Relations Act, he cannot be said to be "incriminated" or "degraded." But to those who live in the world of labor relations, the company or union, who has been "convicted of" or "found guilty" of unfair labor practices, certainly stands branded as a wrongdoer or malefactor in the business community 11 The only authority by which the General Counsel invokes rule 43(b) is found in Section 10(a) of the Taft-Hartley Act. When Congress passed the Taft-Hartley Act, it wished to set some standards as to procedure and the admissibility of evidence, a highly criticized deficiency of the Wagner Act, so it included the following sentence in Section 10(a) under the title, "Prevention of Unfair Labor Practices": Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to the Act of June 19, 1934. (U.S.C. Title 28, sees. 723-B, 723-C.) [Emphasis supplied ] Without more, and without regard to the italicized phrases above, the General Counsel has used 43(b) in the manner illustrated in this case. "The Supreme Court in Massiah v US, 377 US 201, gives the history and collates the cases pertinent to this question 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUDING FINDINGS Jones to get ahead of six garnishees against his pay. There is no contrary evidence, so I find that the raise to Jones, had no purpose which was unlawful. Allingham testified that he gave a raise to LaPoint during the pay period beginning July 6. This was a date prior to the election, which was held July 14. Allingham testified LaPoint was the only deliveryman on duty that day, and LaPoint refused to deliver the Company's products unless he was granted an immediate raise. There is no other testimony on this incident , so I credit Allingham. What was he required to do under the circumstances , permit LaPoint to continue his one-man strike, or meet LaPoint's demands? Allingham made the commonsense decision, he capitulated and met LaPoint's demands. In my judgment, he was not required to refuse LaPoint's demand, suffer a work stoppage, which would allow the Company's products to spoil, and the work of other workers be rendered waste, to preserve the "laboratory conditions" of the preelection period. Lastly, we come to the raise given Herbert, Jackson, and Smith. This raise was granted all three men when Allingham talked to them on June 28. Allingham testified that this raise was given as a requested night differential, and as an equalizer with Sam Weddle , a new part-time employee. Allingham, in all of the above-quoted testimony, had the bearing and the demeanor of an honest man. He testified in a frank and forthright way. I would estimate that he is a man in his late 60's, of grammar school education at most, who has spent his life as a baker and now owns and operates a neighborhood enterprise, using mostly "moon- lighting" labor. The Trial Examiner judges him to be a simple and honest soul, endeavoring to do his best in a complex world, which, at times is beyond his comprehension. As a witness, at moments, he appeared slightly bewildered, e.g., that his help to Jones in the matter of the six garnishees, could be considered an unfair labor practice for which he was to be condemned by his government. Upon a consideration of all the evidence, I find that the General Counsel has failed to establish, by a preponderance of the credible evidence, any of the allegations of the complaint. Therefore, it is ordered that the complaint is hereby dismissed in its entirety. It has been found previously that the General Counsel has failed to prove by a preponderance of the evidence that the Company, by Allingham, threatened, coerced, or interrogated any employee. The allegations of the complaint as to raises in pay given for the purposes of influencing the vote of the employees in the election appears to me to be unproven also. To begin our analysis of the evidence on this point, it should be noted that, according to the evidence, knowledge of the Union's organizational campaign first came to Allingham with the Union's petition on June 30. At first glance, the fact that four raises involving six employees were given, would appear to be highly suspicious. Not explained, the fact of the raises could give rise to the inference that the raises were for an unlawful purpose. But, in each case, Allingham, in his testimony, has offered an explanation, which in all cases is corroborated by the employees to a varying extent, so the ultimate question is-are the explanations credible? Furthermore, there is no evidence offered by the General Counsel that Allingham's explanations are untruths. Therefore, the decision of this issue rests squarely on the credibility of Allingham as to the explanations. We will consider first the raise given to Harvey. Both Allingham and Harvey testified that Harvey had been promised a raise, if he undertook and completed a bakery- sanitation course. Harvey fulfilled his part, and was given a raise. It is true that Harvey was not given the raise immediately upon completion of the course, but a few weeks later. This brought the actual payment of the raise close to the time that Allingham learned of the union activity. But, does that situation warrant a finding that the raise to Harvey was for the purpose of influencing his vote in the election? I think not. Harvey's diploma is in evidence. His testimony and Allingham's are in agreement as to when the raise was promised, and for what purpose it was given. There is no contrary evidence; only suspicion, speculation, and conjecture. I find that the raise to Harvey was not a violation of the Act. The raise to Jones can be quickly resolved. It should be noted that this raise occurred approximately 2 weeks after the election. Allingham said the raise was given to enable