Alvin J. Bart and Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alvin J. Bart and Co., Inc. and New York Printing Pressmen & Offset Workers Union, Local 51, IPP & A.U. of N.A., AFL-CIO. Case 2-CA-13683 May 22, 1978 DECISION AND ORDER BY CHAIRMAN FANNIN( AN[) MEMBERS JENKINS, PENELLO, AND MURPHY On December 30, 1975, Administrative Law Judge Max Rosenberg issued the attached Decison in this proceeding. Thereafter, Respondent filed ex- ceptions. The board has considered the record and the at- tached Decision in light of the exceptions and has decided to affirm the rulings, findings.' and conclu- sions of the Administrative Law Judge and to adopt his recommended Order. Urging reversal of the Administrative Law Judge's finding of a violation, our dissenting colleague would have the Board adopt a per se rule which automati- cally excludes hearsay evidence from its proceedings. In finding one of Respondent's employees (Sim- mons) to be a supervisor, the Administrative Law Judge credited two sworn statements given by this employee to a Board agent to the extent that they contradicted his testimony at the hearing. Our dis- senting colleague contends that these sworn state- ments are hearsay under the Federal Rules of Evi- dence and inadmissible to prove the truth of the matters asserted therein because Section 10(b) of the National L.abor Relations Act, as amended, requires that "so far as practicable" Board proceedings be conducted in accordance with the rules of evidence applicable in the Federal district courts. If this case involved solely the question of the ad- missihility of hearsay in Board proceedings, which it does not, we would be reluctant to adopt a rule which mechanically excludes evidence, regardless of its intrinsic reliability, because it is technically hear- say. Administrative agencies ordinarily do not in- voke a technical rule of exclusion but admit hearsay evidence and give it such weight as its inherent quai- ity justifies. E.g.. Opp Cotton Mills, Inc. v. Administra- tor of the I'age and Hour Division of the Department of l.,abor. 312 U.S. 126, 155 (1941): Carter-Wallace, i Ihe Administrative l.Ea Judge found that Joseph Simmons repl eld Night Foreman Rene (Carrion and received a $60 weekly increase in the transfer to night wioik. Though we adopt the \Administratise l.aw Judgc., cnI-clusion fuith iespect to Simmons' supervisuory status. we deo not findr relevant nor relN on his findings as to whom Simnmons replaced or the ;aItriunl of the weekl' increase. Inc. v. Gardner, 417 F.2d 1086, 1095 (C.A. 4, 1969), cert. denied 398 U.S. 938 (1970); Rocker v. Cele- brezze, 358 F.2d 119, 122 (C.A. 2, 1966); Brown v. MacY. 340 F.2d 115 (C.A. 5, 1965); Kutcher v. Gary, 199 F.2d (C.A.D.C., 1952); Concrete Materials Corp. v. Federal Trade Commission, 189 F.2d 359 (C.A. 7, 1951). In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court held that reports, which were clearly hearsay in character, by themselves consti- tuted substantial evidence sufficient to support an administrative finding. The Court made clear that al- though "hearsay in the technical sense . . . would be deemed formally inadmissible in judicial proceed- ings," it would not reject "administrative reliance on hearsay irrespective of reliability and probative value." 402 U.S. at 407. But our dissenting colleague would have the Board arbitrarily reject probative evi- dence because of its technical hearsay character and asserts, in obvious error, that reliance on such evi- dence violates due process. But see California v. Green, 399 U.S. 149 (1970), cited by the Board in Snaider Syrup Corporation and Tulip Syrup Corpora- tion, 220 NLRB 238 (1975), in which the Board af- firmed an Administrative Law Judge's use of pretrial affidavits as affirmative evidence, notwithstanding the contradiction of the affidavits by the affiants at the hearing. See also Starlite Manufacturing Compa- ny, 172 NLRB 68, 72 (1968). The arbitrary rejection of probative evidence is compelled, she insists, by Section 10(b) referred to above. Nothing in the legislative history or language of Section 10(b), however, requires that it be con- strued in this fashion. As the dissenting opinion notes, Section 10(b) in its present form was included in the 1947 House amendments to remedy supposed abuses in Board procedures under the Wagner Act. But there is no suggestion that the admission of hear- say evidence was one of the abuses sought to be remedied. Moreover, as acknowledged in the dissent, Senator Taft's supplementary analysis of the legisla- tion explains that the phrase "so far as practicable" in Section 10(b) "gives to the trial examiner consider- able discretion as to how closely he will apply the rules of evidence" (emphasis supplied). This hardly commands the per se rule of exclusion for which our dissenting colleague argues and, accordingly, it has been generally recognized that the Board is not bound to follow the strict rules of evidence applica- ble in the Federal courts. Teamsters Local Union 769 v. N.L.R.B., 532 F.2d 1385 (C.A.D.C., 1976): N.L.R.B. v. Addison Shoe Corporation, 450 F.2d 115 (C.A. 8, 1971): N. L.R.B. v. International Union of Op- erating Engineers, Local 12, 413 F.2d 705 (C.A. 9, 1969): N.L.R.B. v. Capitol Fish Company, 294 F.2d 868 (C.A. 5, 1961): N.L.R.B. v. Imparato Stevedoring 236 NLRB No. 17 242 ALVIN J. BART AND CO. INC. Corporation, 250 F.2d 297 (C.A. 3, 1957): N.L. R.B. v. W. B. Jones Lumber Company, Inc., 245 F.2d 388 (C.A. 9, 1957). But even if the Board should decide as a general matter to apply the rules pertaining to hearsay evi- dence in its proceedings, the Administrative law Judge's findings in this case should nevertheless be affirmed. In the first place, there is a serious question whether the two statements in question constitute hearsay. The statements were given under oath by Simmons who admitted that he understood their contents when he signed them. Simmons testified at the hearing and was exposed to extensive direct and cross-examination in which he was interrogated con- cerning virtually every statement in the two affida- vi s. The authorities are divided as to whether the prior statement of a witness who is later subject to cross- examination with respect to the statement is hearsay. The "orthodox view" classifies such statements as hearsay which may be admitted under traditional ex- ceptions or for impeachment purposes. The modern trend, however, is that prior inconsistent statements of a witness are not hearsay at all and, accordingly. that they may be used substantively. E.g.. Model Code of Evidence, Rule 503(b) (American Law Insti- tute 1942). See, generally, McCormicAk' Handbook o(f the Law of Evidence § 251 (E. Cleary ed. 1972): Ila. Wigmore, Evidence, § 1018. Adopting an intermedi- ate position. Congress drafted Rule 801(d) of the Federal Rules of Evidence to provide that the prior statement of a witness is not hearsay if "the declarant testified at the trial or hearing and is subject to cross- examination concerning the statement, and the state- ment is . . . inconsistent with his testimony, and was given under oath subject to the penalty of perjury .in a deposition . If the sworn statements to the Board agent are re- garded as depositions, they are not hearsay under the Federal Rules. And there is good reason to treat them as such because there is no requirement under the Federal Rules that the prior statement embodied in a deposition be subject to cross-examination when made. If the sworn statements are not deemed to be depositions, the distinction is indeed a fine one enti- tled to little consideration in an administrative pro- ceeding where there is discretion to receive in evi- dence and rely on hearsay as substantive evidence.2 2 The sworn statements of Simmons. in an, event. would seem io hr excluded from the definition of hearsay as an admission under Rule 801(d2\)(D) of the Federal Rules of fsvidence. This rule provldes that it statement by the agent or servant of a party. offered against a parts. i not hearsay if it concerns "a matter within the scoipe of his agency or emplo,- ment. made during the existence of the relationship" Surel, Simmons' statements concerning the nature of his duties as assistant foreman were "within the scope of his agency iir emplosment." A further reason for not applying the exclusionary rule advocated by our dissenting colleague is the well-established doctrine that hearsay is admissible in the absence of objections. See, e.g.. Fed. R. Evid. Rule 103(a)(1). See also Plumbehrs, Sitlealta'ittcrs., ld Rcfricralion L.oca! 46P (Prccivionaire, Inc.). 195 NLRB 700. 702 (1972). In the present case there was no objection to the admission into evidence of Sim- mons' two sworn statements. This was not merelI an inadvertent failure to object but a deliberate state- ment on the record that there was no objection. When asked bh the Administrative Law .Judge whether he had any objection to their receipt in evi- dence. Respondent's attorney stated: Just as to the introduction of these twio state- ments, we would not object provided that I have an opportunity on cross examination to go into the truth and accurac, of the \witness's state- menlts. Q. So you have no objection otherwise. A. No objection otherwise. Moreover. although the Administrative l.aw Judge's decision found that Simmons' affidavits stated the truth whenever they were in conflict with his oral testimony. Respondent filed no exceptions based on the alleged hearsay character of the affidavits. Our dissenting colleague is also in error in suggest- ing that the sworn statements constituted the onIl evidence of Simmons' supervisory status. Simmons' testimonc, on cross-examination corroborated in some respects his affidavits. Although he attempted. in general. to discredit his sworn statements as esi- dence of his supervisory status, he did this b' dilut- ing rather than denying the content of the affidavits with respect to his supervisory functions. For exam- ple, he charged the Board agent inaccurately rec- orded that he said he was the night foreman whereas his statement was that he was assistant foreman. Finally. it is clear that Simmons' testimons on di- rect and cross-examination persuaded the Adminis- trative Law Judge that the affidavits rather than his oral testimony presented the truth of the matter. lie testified that he would not have signed the affidavits if he had understood their significance in helping one party or destroying another party. The Administra- tive Law Judge understood this to mean, and proper- Iy it seems, that Simmons would tailor his testimon,.. regardless of veracity, to aid Respondent's cause in the litigation, since Simmons was the leader of the antiunion movement in the plant. Accordingly. he rejected his oral testimony and accepted the evidence in the affidavits where in conflict with his oral testi- mony. This was clearly permissible. As the Supreme '43 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Court stated in N.L.R.B. v. Walton Manufacturing Co., 369 U.S. 404, 408 (1962), quoting from D yer v. MacDougall, 201 F.2d 265, 269 (C.A. 2, 1952): [For the demeanor of a witness] may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story: for the denial of one who has a motive to deny, may be uttered with such hesitation, dis- comfort, arrogance or defiance, as to give assur- ance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies. Certainly if the Administrative Law Judge was justi- fied in concluding from hearing and observing the witness testify that the opposite of Simmons' oral tes- timony was true, he could properly conclude, as he did, without regard to the hearsay question that those opposite statements contained in the affidavits were true. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent. Alvin J. Bart and Co.. Inc., New York City, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER Mtp RPiY dissenting: I cannot agree with my colleagues' decision to af- firm the Administrative L.aw Judge's finding of a vio- lation where one of the necessary elements is sup- plied entirely by the use of nonparty pretrial affidavits to determine the truth of the matters as- serted therein although that person was a witness who testified at the hearing herein. The use of these affidavits is prohibited by the Federal Rules uf Evi- dence, infra, which the Board, under Section 10(b) of the Act, is bound to follow "so far as practicable." Here, Respondent withdrew recognition from the Union on the basis of a petition, signed by a majority of its employees, which stated that the emplo}yees did not want the Union to represent them. The petition was circulated by Joseph Simmons, a two-color pressman at the plant. Although the testimony at the hearing by General Counsel's witnesses, including Simmons, and Respondent's witnesses is to the effect that Simmons is not a supervisor, the Administrative Law Judge rejects this testimony and credits two affi- davits signed by Simmons which, the Administrative Law Judge finds, indicate that he is a supervisor. Re- lying on this finding, he concludes that the petition signed by the employees is tainted and therefore Re- spondent's refusal to bargain based on the petition is unlawful. Accordingly, the finding of the violation in this case rests solely on the crediting of pretrial state- ments which are hearsay. The National Labor Relations Act provisions re- garding evidence require that the Board apply rules of evidence in use in Federal courts.3 Section 10(b) of the Act states: 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, adopted by the Supreme Court of the United States pursuant to the Act of June 19, 1934 (U.S.C., Title 28, secs. 723-B, 723-C). Thus, while the phrase "so far as practicable" indi- cates that the Board has some discretion in applying rules of evidence, this discretion, unlike that of other administrative agencies,4 is linked to the Federal Rules and may only be exercised with respect to their application. An inquiry into the Board's powers in this area, therefore, must first identify the applicable Federal Rule, and then determine whether or not its application is "practicable." 5 The applicable Federal Rule with respect to the use of pretrial statements is Rule 801(c) of the Feder- al Rules of Evidence (FRE) which defines hearsay as "a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evi- dence to prove the truth of the matter asserted." The affidavits at issue in the instant case clearly meet this hearsay definition, inasmuch as they were made by the declarant at a time when he was not testifying at 3The majority relies on the Supreme Court's holding in Richardson v. Perales, 402 U.S. 389 (1971), which indicates that in some circumstances hearsay may constitute substantial evidence in an administrative hearing regardless of the rules of evidence. There, however, the Court was presented with a case arising under the Social Security Act which, in contrast to the National Labor Relations Act. specifically provides that. "'Evidence may be received in any hearing before the Secretary even though inadmissible un- der the rules of evidence applicable to court procedures." (42 U.S.C, sec 40(bh)) The Court further relied on the plaintiff's waiver of the right to subpena and cross-examine those witnesses whose written statements were presented in the hearing. 4 Most other administrative agencies are bound by the Administrative Procedure Act. 5 U.S.('. Sec. 556(D} which provides: "an) oral or documen- tary evidence mas be received, but the agency as a matter of policy shall provide for the exclusion of irrevelant. immaterial, or unduly repetitious evidence...." 5My colleagues in the majority assert that I would have the Board adopt a per Se rule which automatically excludes hearsay evidence. This is not true. I would instead have the Board engage in the analytical process required by Sec I10(hb of the Act That is, the disputed evidence should be examined in light of the provisions of the Federal Rules of Evidence, and a determina- tion should be made as to whether the application of the Federal Rules is practicable in the particular case before the Board. This process clearly does not result in an automatic exclusion of hearsay evidence or a rigid applica- tion of the Federal Rules. There are any number of instances where the Board need not strictly apply the Federal Rules of Evidence. It is my posi- tion, however. for the reasons stated herein. that the substantive use of pretrial affidavits is not such an instance. 244 ALVIN J. BART AND CO.. INC. a trial or hearing, and are being used by the Adminis- trative Law Judge to prove the truth of the matters asserted.6 Nor do the affidavits meet the exception to the hearsay rule set forth in FRE 801(d)(1), which states: (d) Statements which are not hearsay. A state- ment is not heresay if- (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjure at a trial, hearing, or other proceeding, or in a deposition .... [Emphasis supplied.] 7 The affidavits at issue here were not made at a trial, hearing, or other proceeding. Nor were they the result of a deposition, despite the majority's asser- tions to the contrary. The Federal Rules of Evidence do not define "deposition"; however, the Rules of Civil Procedure for the U.S. district courts refer to depositions as a means of taking testimony where notice must be served upon all parties, and cross- examination of witnesses may proceed as permitted at trial under the provisions of the Federal Rules of Evidence.8 The Rules of Civil Procedure further pro- vide that if a party shows that when he was served with notice he was unable through exercise of dili- gence to obtain counsel to represent him at the tak- ing of the deposition, the deposition may not be used against him.9 An affidavit taken by a Board agent clearly cannot be considered a deposition under the provisions of the Rules of Civil Procedure inasmuch as no notice or opportunity for cross-examination is given. Nor is it considered as such under the Board's Rules and Regulations which require that applica- h That the affiant available for cross-examination at the hearing and in fact was cross-examined at length about the affidavits does not. as ms col- leagues suggest. solve the hearsay problem As discussed more fulls. llrr., the crucial factor is the time at which the cross-examination iccurred. If. as here, it did not occur at the time when the statement was made. the hearsay rule has not been satisfied Congress debated the use of prior inconsistent statements as substa;ntial evidence and ultimately rejected it. The joint explanator? statement of the Committee of Conference. H Rept. No. 93 1597 Conf. Rept (December 14, 1974), states that the House bill provided that a statement was notl hearsas if it was given under oath subject to cross-examination and subject to the penalty of perjury at a trial or hearing or in a deposition. The Senate revised the bill to drop these requirements so that an; prior inconsistent statement would be admissible as substantive evidence. The Joint Cotnfer- ence reached a compromise and proposed that prior inconsistent statements be admitted as substantive evidence provided the? were made under oath subject to penalty of perjury at a trial, hearing, or other proceeding or at a deposition. (The House's requirement of cross-examination was dropped to allow the use of statements made before a grand jur).) This sersion svas enacted by the Congress. Rule 30, See also Rules 27. 28, and 32. as to the procedure for taking depositions and their use in court. Rule 30(bX2) tions for taking depositions be served upon all par- ties. and that "the officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath by all the parties ap- pearing. 0.." 0 It therefore follows that the affida- vits involved in the instant case may not be regarded as depositions under the Federal Rules of Evidence (or the Board's Rules) and hence are not within the FRE 801(d)(1) exception to hearsay.\ ' Thus. the applicable rule of district courts of the U.S. prohibits the use of affidavits in the circum- stances of the instant case for the purpose of making findings as to the truth of the matters asserted therein. 12 The question remains, however. as to whether or not the Board. in its discretion should find it practi- cable to apply this rule. The legislative history of Sec- tion lO(b) gives insight into the intended scope of Board discretion on evidentiary matters. The Wagner Act provided that "the Rules of Evidence prevailing in courts of law or equity shall not be controlling." The 1947 House Bill proposing amendments to the Wagner Act contained Section 10(b) in its present form. House Report No. 245 explained why it was necessary to restrict the Board's use of the laws of evidence. Referring to the aforementioned provisions of the Wagner Act. the report stated: Rules and Regulations. Series 8. as amended, Sec 102.30(c) 1 N1 colleagues suggest that the sworn statements of Simmons are ex- cluded from the definition of hearsay as an admission by parts opponent under I R sOl0(d)2). This suggestion. howeser. results In a circular argu- ment Simmons' statements mas be considered admissions against interest onls bs presupposing that Simmons is a supervisor. acting on behalf of Respondent Yet the verx issue to be determined b5 evaluating Simmons statements is whether or not he is in fact ;t superstsor ': hile the affidasits are hearsaN under the FRi . the. ma? be admitted into es ridenee for the purpose of attacking the cred ibilits of the affiant (FRE 806(. Attacking and Supporting (redibility of Declalrant} Ihe ilajorits argues that the substantive use of the affidasits is warranted on the grounds that Respondent's counsel neither objecled at the hearing to the a.lmission of the affidasits into evidence. nor specifically excepted to the hearsas character of the affidas its his argument fails on two counts First. as noted ahbne, the FRE allows the admission of such affidavits into evl- dence for the purpose iof Impeachment of credibility Thus. Respondent's counsel had no ground to oibject rto the receipt of the affidasits into esi- den.e tie could hase made a statement indicating that he belleved the affidaits were admissible for this limited purpose. tHoever. he had no reason Iti anticipate that the Administrative L aw Judge uwould use the affi- daits In a. manner contrars to the FRE Second. Respondent did file excep- tions to the crediting of the a;ffidasits in preference to the testimonial esl- dence at the hearing In its brief Respondent argued "uwh should the thoroughl'. impeached two Mas 1975 statements he granted superior status to their sworn and corrobhorted testimons' The Ma'N 1975 statements *ere ot, t/Ati1 in the formal surroundings of a court. In front of a Judge and pposilng counsel in circumstances where there is a. direct question and answer format and where leading questions are not permitted. and where the wiltness is subject to cross examination. Thus. while Respondent did not use the terni hearsaN or make reference to the FRE. it clearly identified those chiaracterrislcs of pretrial slalenments which render them hearsas under the [-R- I he maiolrit'. therefore. takes the contradictor' position of requir- ing Respondent to frame its exceptions in an exceedingl' technical fashion. while simiultaneousls deciding not to applN the FRE o n the grounds that Sec. IOtbl of the Act does not require strict adherence Ito technical rules of es Idence 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These clauses of the Act have resulted in what the courts have described as "shocking injustic- es" in the Board's rulings, "asinine reasoning" by the Board, findings "overwhelmingly op- posed by the evidence," findings that "strain our credulity." and remarkable discrimination on the part of the Board in believing its own wit- nesses and disbelieving others. [Citations omit- ted.] 13 The Senate bill, on the other hand, retained the Wagner Act provisions on evidence. Such reasons were advanced as "the desirability of speed, the de- sirability of inaugurating legal short cuts, desirability of getting quickly into the essence of a case without being too greatly encumbered by legal technicalities and the rules of evidence." 14 The Senate. however, ultimately agreed to include Section 10(b) in the amendment. Senator Taft set forth the rationale for it in his Supplementary Analy- sis of Labor Bill as passed: This provision has been attacked as one com- pletely straightjacketing administrative proce- dure. As I stated on the floor, this is more a preventive measure than one to cure existing abuses. The Board's earlier habit of accepting literally anything into the record was indefensi- ble. I am informed that now the trial examiners conduct their hearings pretty much in conformi- ty with the practice of the courts in the locality where the hearing is being held. Then, too, the limitation "so far as practicable" gives to the trial examiner considerable discretion as to how closely he will apply the rules of evidence.? Consequently, while Congress did not want to con- fine the Board to a rigid and technical application of the rules of evidence, it was concerned with prevent- ing the use of discretion which led to charges that the Board was allowing anything at all to be admitted into evidence, and was discriminating in favor of its own witnesses. In light of this, the Board clearly should not use as substantive evidence affidavits such as the ones in- volved here. It is common practice for the investiga- tion of cases to be conducted in part by the taking of affidavits by Board agents. Since the statements of- ten are taken in the absence of counsel, the Board agent alone frames the questions to the witness and records the response. The possibility of the witness misunderstanding the questions and of a Board agent asking questions which result in a partial or distorted 1 R.i Rept No 245, 80th (Cong.. Isi Sess. (1947). reprinted in I Ieg IHist tt 332. 493 Cong Rec 6613 11947)} reprinted in 11 I.eg. [list. at 1560 (1947) 93 ( ong Rec 7(X)2 (1947): reprinted in 11 I.eg. flist. at 1625 (1947) view of events cannot be countered by cross-exami- nation. That cross-examination occurs at a later date does nothing to remedy this situation. The testimony taken by affidavit takes place at a different procedur- al stage than that elicited by cross-examination at trial. In consequence, the pretrial testimony assumes the character of a prior inconsistent statement, make closer to the time of the disputed conduct, casting doubt on the credibility of the later testimony at trial. Thus, while cross-examination does finally occur, it is not evaluated in the same way as it would be had it occurred in the same proceeding as the direct exami- nation. A witness' correction during direct examina- tion at the same proceeding, may be viewed as a clar- ification or a fairer presentation of the facts. But the same testimony, elicited during cross-examination at a later procedural stage, may only appear to be self- contradiction and an impeachment of the witness' credibility. In these circumstances, as a practical matter, effective cross-examination on the pretrial statement is precluded. Crediting the affidavit in this context opens the Board to the charge of discrimination in believing its own witnesses and disbelieving others; for statements consisting of questions asked and recorded by Board agents in the absence of counsel are credited over testimony given at a hearing where procedural safe- guards are in effect. This is particularly true here where the witness' testimony at hearing was corrobo- rated by other witnesses, and where the pretrial state- ments form the sole basis for finding a violation.'6 My colleagues in the majority simply do not confront this problem in policy; instead they confine their ar- gument to general statements about the Board's dis- cretion in evidentiary matters. Further, I see no extenuating circumstances in this case which make the substantive use of affidavits necessary or desirable. The Administrative Law Judge infers from the testimony at the hearing that if Simmons had known at the time he gave his affida- vits that they would redound to Respondent's disad- vantage, he would have tailored his testimony to aid Respondent's cause. Simmons' testimony as a whole, however, compels the opposing inference. He did not grasp the serious nature of the affidavit, hence did not think it necessary to argue with the Board agent about the accuracy of what the agent had written. Thus, Simmons repeatedly made such statements as: Another thing I want to say about that, is, if I The witness' partial corroboration of the affidavit at the hearing is not significanl. Since the difference between supervisory and nonsupervisory status is largels a matter of degree, it stands to reason that the witness testimlln ait hearing will provide some corroboration of the earlier state- ments. Iurther. it is clear in considering Simmons' testimony as a whole that he did not affirm the stiatements in the affidavits as representing the truth of the nl;ltters asserted 246 ALVIN J. BART AND CO._ INC. had known the purpose, the meaning of this document, if I was told, "Mr. Simmons, we are going to take down a statement from you, and this will be used for the purpose of one party to help or destroy another party," maybe this whole thing would have been straightened out in the right way. I didn't understand the meaning of it, no. I just thought we were having a conversation. I didn't know what the meaning of it was. If I had known the meaning I would never let him put in foreman. I would never-I would have made him write it the way he was supposed to. : : * * * I didn't even know that it was of this value. A document of that importance. If I did, I would have sat there and made him read it, and I would have went over it step by step. Even if the Administrative Law Judge's inference re- garding these remarks were correct, it would only re- sult in the impeachment of Simmons' general capaci- ty for truth and veracity. It could not warrant the further inference that any statement made by him. whether at or before the hearing, was true, for if his credibility is in doubt, there is no reason to believe that earlier statements are more accurate than later ones.1 Finally, I do not believe that the application of the Federal Rule in this case would constitute a highly technical approach to the rules of evidence. Under the rule, it is still proper to use the affidavits at trial 7 The majority cites N I ..RB v. Walton Manufacturing Compunot. 369 U.S. 408 (1962). quoting from Dier v. MacDougall. 201 F.2d 265 (CA. 2. 19521 as justification for the Administrative Law Judge's use of affidavits in the instant case. Halton, however. was addressed to the question of how to evaluate an employer's testimony with respect to his reasons for discharging an employee. The Court specifically rejected a rule announced by the Fifth Circuit in Labor Board v. Tes -O-Kan Flour Mills Co. 122 F.2d 433 (1941). which stated that in reinstatement cases the employer's statement under oath must be believed unless it is impeached. contradictory. or inconsistent with positive sworn evidence. The Court was of the view that this rule was too narrow. and provided instead that the trier of fact may take the de- mneanior of a witness into account such that the truth of what the witness denied may he inferred, if the witness has a motive to deny. The Court did not condone this kind of inference in all instances, but only where there is a moitlse to deny In the context of Walton the witness was an employer who clearly had a motive to deny that he discharged an employee for union activity. inasmuch as his economic self-interest was involved. In the instant case, however. Simmons could he deemed to have such a motive only if he were an agent for the employer. As we noted. however. his status of employment is the central issue Io) he resolved in evaluating his testimony. Further. Simmons' testimony at the hearing was not so unambiguous as to leave no alternative but to assume the truth of his pretrial statements. Indeed. his testimony suggests that when he gave the affidavits. he was not giving an accurate description of his duties. hut was exaggerating them out of a sense of self- importance. Thus. he testified I asked him I kept telling him I said. "You keep putting down in here foreman ' He said. "If you assist foreman Canzoneri. that means for the purpose of impeaching the witness' credibili- ty. Parties appearing before the Board have previous- ly been limited to this use of affidavits. Indeed. when presented with this issue in the past, the Board has generally held that affidavits may not be used as sub- stantive evidence: [t]he pre-trial affidavits here adduced in evi- dence have no independent testimonial -value and, in accord with the weight of authority. must be looked to solel' as measures of the credit of the individuals who testified at the hearing. [Footnote omitted.] 18 Thus, I fail to find any grounds to believe that adherence to this view would in any way hamper the Board's proceedings or place an undue burden on the parties involved therein. I would, accordingly, apply the Federal Rules of Evidence in this case, find that General Counsel has not presented sufficient evidence to establish the xio- lation, and dismiss the complaint. Due process demands this result. 9 that you are a foreman." So. I didn't tell him toi change it. because he said. "If ( an7oneri is a foreman and sou assist him irou are an assistant folreman." So I said. "Oh yeah?' So. mabe I stuck my chest lout a little hit and sa.lliowed it I 'Sca sletit .Nulhern Dairies. \'iational Dairs Products (Corporuation. 26 N.RB 1223. 1225 11960) See a.lso ( & IH ('onsirucrtihn (0,mponnl 130 NL RB 923, 930 ( 19'61 h and ;.L..R B . Q)uest Sh, n Mar[ Brassiere (Conpran. 185 I 2d 289 (( A 2. 1950. cert denied 342 1 S 812 (1951). II is true. as the majority points out. that in Sndider Sirup Corp, 220 NL.RB 238 { 1975. and Starlie kfanufaucturing C(o. 172 NLRB 68 (19681 the Board appro'.ed the substantive use of affidavits To that extent, the Board has perhaps not been enfirel, consistent. }lowever. the hearings in these cases occurred prior toi the adoption iof the present FRE I he St.lrhlle decision was based on the premise that California rules of esidence. u hlch allowed the substantive use iof affidas its. should he applied inasmuch as the case was tried in California and, at that time. the applicable rule in the i S. District Court ssuld have been the law of the forum. ('all- fornia This rationale is no longer i table because the FRE are currently the rules applicable in lI.S District (lourts and the FRE specifically proscribe the substantive use of affidavits In Sniider. the Board affirmed the Administrative Law Judge's decision to allow the substantive use iof affidavits as advocated by such authorities as ;' Xgs'iore Hlowever. these authorities were specifically rejected in the adop- tion of the FRE which occurred subsequent to the Administratlie l.aw Jud ge's decision. The majoerity suggests that the Supreme Court has determined in ('Cal- fornia s. (Gren. 399 U.S. 149 (1970). that the substantive use of affidavits does not 'iolale due process. lowever. that case was addressed to the nar- row question of whether a criminal defendant's constitutional right to "he confronted with the witnesses against him" (as set forth in the sixth amend- ment and ipplied to the States through the fourteenth amendment) was necessarily inconsistent with a State's decision to allow the substantive use iof pretrial affidavits The Court held that such use of affidavits did not violate the confrontation clause so hlng as the affiant was available at trial for cross-examination son the affidavit DECISION MAx ROSENBEHR(. Administrative Law Judge: With all parties represented, this proceeding was tried before me in New York. New York, on September 16. 17. 18, and 19. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1975, upon a complaint filed by the General Counsel of the National Labor Relations Board and an answer filed there- to by Alvin J. Bart and Co., Inc., herein called Respon- dent.' At issue is whether Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. Briefs have been received from the General Counsel and Respondent, which have been duly consid- ered. Upon the entire record made in this proceeding, includ- ing my observation of the demeanor of the witnesses as they testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent, a New York corporation with an office and place of business located in New York City, New York, has, at all times material herein, been engaged in operating a printing plant providing lithographic and re- lated services to commercial customers. During the past year, Respondent performed services valued in excess of $1 million, of which services valued in excess of $75,000 were performed in, and for, various enterprises located in States other than the State of New York. The complaint alleges, the answer admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that New York Printing Pressmen & Offset Workers Union, Local 51, IPP & A.U. of N.A., AFL-CIO, herein called the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that Respondent violated Section 8(a)(l) and (5) of the Act when, on or about October 19, 1974, it refused, upon the Union's request, to furnish that labor organization with the names and home addresses of all employees in an appropriate unit for which the Union had previously been certified by the Board as their collec- tive-bargaining agent. The complaint further alleges that, since on or about October 19, 1974, Respondent engaged in conduct violative of that Section by refusing to bargain in good faith with the Union over the unit employees' wag- es, hours, and other terms and conditions of employment. Finally, the complaint charges that, in December 1974, Re- spondent unilaterally changed the existing wage structure for employees in the appropriate unit in derogation of its obligation to bargain with the Union as demanded by Sec- tion 8(a)(5) of the Act. For its part, Respondent denies that it indulged in any unfair labor practices proscribed by the statute. Pursuant to a Stipulation for Certification Upon Con- sent Election executed by the parties herein in Case 2-RC The complaint, which issued on June 13. 1975. is based upon a charge filed on April 4, 1975. and served on April 8. 1975. 15771, an election by secret ballot was conducted by the Board on January 7, 1972, among a unit of all pressroom and preparatory department employees including press- men, assistant pressmen, cameramen, strippers, platemak- ers, opaquers, and apprentices in both departments, em- ployed by Respondent at its New York City plant, excluding office clerical employees, bindery employees. shipping department employees, guards, and all supervis- ors as defined in the Act. The Union was successful in the balloting. Thereafter, Respondent filed timely objections to conduct affecting the results of election, alleging, in sub- stance, that the Union threatened employees and, by its acts and statements, prevented a free choice in the election. On January 28, 1972, after an investigation, the Regional Director issued his Report on Objections and Recommen- dations in which he found that the objections lacked merit because of insufficient evidentiary support. He therefore recommended that the objections be overruled and that a certification flow to the Union. In the absence of excep- tions taken to this report by Respondent, the Board, on February 16, 1972, issued its Decision and Certification of Representatives adopting the Regional Director's recom- mendations, overruling the objections, and certifying the Union in the appropriate stipulated unit. On April 10, 1972, the Union lodged unfair labor prac- tice charges against Respondent in Case 2 CA-12637, as- serting that the latter, on and after April 4, 1972, refused, upon request, to bargain collectively with the Union in vio- lation of Section 8(a)(5) of the statute. On August 25, 1972, the Board granted the General Counsel's Motion for Sum- mary Judgment on his complaint filed in that action, find- ing and concluding that Respondent, commencing on April 4, 1972, had refused to bargain with the Union in the manner required by Section 8(a)(5). To remedy this situa- tion, the Board ordered that, "In order to insure that the employees in the appropriate unit will be accorded the ser- vices of their selected bargaining agent for the period pro- vided by law, we shall construe the initial period of certifi- cation as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit." 2 After compliance procedures with respect to the Board's Order were resolved in December 1972, the parties met for an initial collective-bargaining session in January 1973. Concurrent with the conduct of this session, and on Janu- ary 12, 1973, Alvin J. Bart, Respondent's president, mailed to Julius Seide, the Union's business representative, the names and addresses of all unit employees at Respondent's plant. Thereafter, Bart and Seide engaged in bargaining colloquies for a period of approximately 21 months. Al- though the parties reached agreement on many aspects of a labor compact, and, in Seide's words, "We generally had very pleasant meetings." I deem it unnecessary to dwell in extenso upon the content of the bargaining dialogue be- tween January 1973 and Octobeer 19, 1974, in light of the General Counsel's concession, made at the hearing. that at all times during said period, Respondent fully and faithful- ly discharged its obligation to bargain in good faith with the Union. 198 N RB. 1070 248 ALVIN J. BART AND CO., INC. The facts which are critical to a resolution of the issues raised by the pleadings occurred during the months of Sep- tember and October 1974. I turn now to their consider- ation. As a result of a number of cancelled meetings between the parties to bargain over a contract, Seide filed unfair labor practice charges against Respondent on September 23, 1974, alleging that Respondent had unlawfully refused to negotiate. With the filing of the charges, Respondent retained attorney Hugh Husband to represent it. On or about September 30, 1974, Seide telephoned Bart and ad- vanced a new contract proposal. During their conversa- tion, Seide asked Bart for an updated list of unit employ- ees' names and addresses. Bart replied that he would refer the request to counsel for advice. On the same date, Seide embodied his oral contract proposal in a letter which he dispatched to Bart. In this letter, Seide also noted that he would withdraw the unfair labor practice charges because the bargaining dialogue had renewed. A few days thereaf- ter, Husband spoke to Seide and a bargaining session was scheduled for October 8, 1974. At the meeting of October 8, 1974, the parties explored various economic items and the matter of union security, and agreement was reached on some of these issues. Before the meeting ended, attorney Husband remarked that he believed that Seide's request for the names and addresses of the unit employees was a proper one, but asked for more time to research the matter. When the session concluded, the parties agreed to meet again on October 22, 1974. Meanwhile, on October 12, 1974, Husband sent Seide a letter in which the former recapitulated the areas of agree- ment reached by the parties at the October 8. 1974, con- clave, and the outstanding areas of controversy. Husband added that his research revealed that Seide was legally enti- tled to the names and addresses of the employees, and as- sured Seide that this material would be made available to him at the meeting scheduled for October 22. Because of a prior political commitment, Seide cancelled the October 22 meeting. However, on or about October 15, 1974, Husband in- structed Bart to collate a list of the names and addresses of the current unit employees. In compliance with this in- struction, Bart posted the following notice on the plant bulletin board: As I was required to do since last year, I have been negotiating with LOCAL 51, as your bargaining agent. They requested that I furnish them with your names and addresses. My attorney has advised me that the Union is entitled to this information and I will furnish this to the union agent when he returns from his vacation, next week. On October 16, 1974, Bart pinned this notice on the bulle- tin board: FOSTER BROWN FREDRIC HARBER RICHARD DILL HENRY SEABOROUGH Will the above named employees, please come into my office with their home addresses. Also will any other employees who have moved since coming to work here or who have moved without notifying the office. please come in with your new addresses. When the foregoing notice appeared on the bulletin board on October 16, Joseph Simmons, a two-color pressman at the plant, and a group of approximately seven employees, gathered around the board and read the notice. Simmons initially testified that, prior to this date he was totally un- aware that the Union was his collective-bargaining repre- sentative. However, Simmons then recanted and admitted that he and the other employees had seen the Board notice in the antecedent unfair labor practice case which was posted on the bulletin board and in which the Board had ordered Respondent to bargain with the Union. Simmons and the employees then commenced to discuss the matter of affording their names and addresses to the Union, and a consensus was reached not to provide the information. Whereupon, Simmons drafted a petitition which read "We the employees of Alvin J. Bart, Inc. do not wish to have our names and addresses given to LOCAL 51. We the employees of Alvin J. Bart do not want to be represented by LOCAL 51," after which he signed the document and circulated it among the working staff for signature, asking them to "Read this, and if you like it, sign it, and if you don't like, don't sign it." Eventually. 25 individuals appended their signatures to the petition that day.3 It is conceded by all parties to this litigation and I find no official of Respon- dent was either aware of, or instigated, or encouraged Sim- mons or the other employees to take this collective action. After completing this chore, Simmons sought out Bart and proffered the petition to the latter, commenting that "the guys don't want our names and addresses given to the Union. They don't want the Union." Bart informed Sim- mons that he would take no action on the petition until he had consulted with attorney Husband. Bart thereupon con- tacted Husband and reported the matter to counsel. Armed with this information, Husband sent a letter to Union Rep- resentative Seide on October 19, 1974, which read: Sorry you had to cancel the meeting scheduled for Tuesday. the 22nd with me and Al Bart, but probably it's just as well, in light of the circumstances. Let me explain. After I advised Mr. Bart on Tuesday that he should furnish you with the names and addresses of the em- ployees that your union represented, he had his book- keeper obtain those addresses and he posted a short notice to his employees of the fact that you are enti- tled to those names and addresses as their bargaining representative and that he had been advised to, and would be giving them to you. Shortly after the notification to the employees. Mr. Bart was presented with a petition from an over- whelming majority of those employees of the press- room and prep group that unequivocally stating those employees did not want their names and addresses to be given to the union and that they didn't want Local At the hearing, the parties stipulated that the appropriate unit consisted of 133 emploees The General Counsel acknowledged that 22 employees had signed the petition. a clear majorits of the unit employees, and I so find 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 51 to represent them. In view of these circumstances, I must inform you that the Bart Company cannot bargain with your union until it has very convincing proof that your union represents a majority of employees in the unit of which you were the certified representative. For the same reason, the Bart Company does not believe it would be 'appropriate to give your union those names and addresses unless the company has the same clearly convincing proof that your union rep- resents a majority of those employees. If you want any further information on this please call me and I will be glad to obtain it for you. Following the mailing of this letter, the parties never again indulged in bargaining relations. Sometime in De- cember 1974, Respondent granted wage increases to 25 of the unit employees without notifying the Union.4 On April 4, 1975, the Union filed the charges with the Board which give rise to this proceeding. The General Counsel asserts that Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union, by declining to afford it with the names and ad- dresses of the unit employees on and after October 19, 1974, and by unilaterally awarding wage increases to those employees in December 1974 without prior notification to and consultation with the Union. The predicate for this assertion is that Joseph Simmons, the two-color pressman who hatched the idea of drafting the petition of October 16, 1974, and who obtained the signatures of a clear major- ity of the employees in order to wean them away from the Union, was in fact and law a supervisor within the ambit of Section 2(11) of the statute. The General Counsel therefore argues that Respondent could not have harbored a good- faith doubt regarding the Union's majority status on Octo- ber 19, 1974. because the presence of the signatures on the petition was the product of known supervisory taint. On the other side of the barricades, Respondent contends that Simmons was merely a rank-and-file employee who sought to enlist the collective support of his fellow employees to oust a bargaining agent not of their choice from its plant presence when it was timely to do so.' Alternatively, Re- spondent claims that, even though Simmons might be char- acterized as a statutory supervisor, his endeavors in devis- ing the petition and obtaining the employees' signatures thereon were a spontaneous reaction against providing his name and address to an alien labor entity; that he did not coerce or otherwise encourage the employees to sign the document; and that Respondent had no knowledge of, and played no role in, his activities in this regard. Simmons was hired by Respondent in 1972, and worked as a two-color pressman. In January 1974, he toiled on the day shift and earned a weekly salary of $295. Simmons testified that in July 1974, Pressroom Foreman Phil Can- 4 Respondent also unilaterally granted wage increases to its emplosee, in 1973, which became the subject of unfair labor practice charges filed bh the Union. These charges were withdrawn bh the Union to encourage the hbar gaining process. Pursuant to the Board's Order in Case 2 CA 12637. reported in 198 NL RB 1070, the conclusive presumption of the Union's continued majlorit status should hase ended in January 1974. zoneri came to him and inquired "would you come on nights and be my assistant foreman?" When Simmons asked Canzoneri what the night job entail, the latter replied that "I want you to come on nights and assist me, and if anything goes wrong you can call me up. I don't want everybody calling my house [at nightl, because this guy and that guy is calling me up, and I can't ever get no rest. So would you come on nights?" Upon learning that his weekly earnings would escalate to $320, Simmons readily agreed to the transfer. Throughout his testimony delivered from the stand, as well as in the testimony of Respondent's president Bart and Pressroom Foreman Canzoneri, Simmons was por- trayed simply as an employee who was the most highly experienced two-color pressman in the plant and conse- quently was assigned routinely to funnel Canzoneri's pre- conceived instructions to the employees during Conzoneri's absence on the evening shift, which absence occurred generally after 8 p.m. Thus, Canzoneri claimed that, because of Simmons' expertise, he was paid substan- tially more than the other two-color pressmen; that Can- zoneri alone possessed and exercised the authority to af- ford overtime to the men on the night shift, and that Simmons was not endowed with any of the normal statu- tory indicia of supervisory authority. Moreover, Simmons, Bart, and Canzoneri testimonially maintained that Can- zoneri, and only Canzoneri, was responsible for transfer- ring Simmons to the night shift in July 1974, and that Bart played no role in this reassignment. However, in May 1974, Simmons gave two sworn affida- vits to a Board agent whose contents are at substantial variance with the testimonial utterances of Simmons, Bart, and Canzoneri. When called as a witness, Simmons at- tempted to denigrate the truthfulness and accuracy of those verified statements. Initially, Simmons hinted that the agent falsified the entries in the affidavits. He then claimed that the agent put words in Simmons' mouth and failed to make appropriate corrections in the statements on Simmons' instructions. However, Simmons acknowledged that he either read the statements after they were drafted or had them read to him by the agent; that he initialled the changes made therein and that he swore to their truthful- ness. The reason for Simmons' change of tack regarding his sworn affidavits as opposed to his testimony may best be defined from his remarks on the stand that "I was stupid when I signed it [the affidavits]. I shouldn't have signed it . . .not knowing that you are hurting one party or helping, I didn't know the significance of it." In short, I am con- vinced that, had Simmons known at the time that he gave his statements to the Board that they would redound to his employees disadvantage, he would have tailored his veraci- ty to aid Respondent's cause in this litigation. Accordingly, I adopt Simmons' verified statements which appear in the affidavits wherever they are in credible conflict with his record testimony, or that of Bart and Canzoneri. In the first affidavit which Simmons gave to the Board on May 12, 1975, Simmons reported that: I have been employed here at A. J. Bart for about three years. Last year I was promoted to night shift working foreman, and received an increase from $290 250 ALVIN J. BART AND CO.. INC per week to my current salary of $350 per week. As far as I know the highest paid employee below me is at about $270 or $280 per week. He is a two-color press- man. There are a total of about three two-color press- man on both shifts, beside myself. A. J. Bart offered me the night shift job, and I had been asked by the Printing Supervisor, Phil Canozzaro [sic], if I was in- terested in the job as night foreman. There was no discussion with me about the duties by Bart or Canaz- zaro because I had been the most experienced Harris two-color pressman and had worked on nights before. There has never been an occasion when I have had to recommend discharging any employee; although I have given permission to employees to leave work ear- ly, I have never told anyone he could not leave (they punch out and are not paid for time not worked.) Phil Canazzero looks overtime cards for day and night shift employees and if an employee forgets to 'punch out," which has happened, I will tell Canazza- ro that so and so was present and worked his shift and should be paid. Canazzaro accepts my word as to the fact that the man worked and should be paid. As to wage raises, if an employee asks about an increase, I would tell the employee to see Canazzaro. He never asked me about whether a man deserved an increase. Of course, he wouldn't have to check with me because there is a "time sheet" for each worker each night, to show how long it takes to complete a particular job or jobs worked on each night (or shift). Simmons supplemented the foregoing affidavit with an- other dated May 28, 1975. This sworn statement recited that: As to the assigning of work, I will tell the pressmen on night shift, what job is to be run next. If there is a rush job coming through out of stripping department, I will know about it from talking to Phil Canazzaro, and when it is ready for the pressroom department later that night, I will decide which pressman to give it to, to run. As to each "job" or "run," I will check the first sheet for proper color combination, position of print- ing on the sheet and art works, so that I can compare the final product to the sample submitted by the cus- tomer. There are some simple "runs" or "jobs" where the pressman might not check it with me because he had run it before. Any minor technical problems with the presses "breaking down" or needing adjustment are handled by Canazzaro on day shift and myself on night shift. The pressmen do not do any repairs. If it is a major problem, an "outside" mechanic will be called in the following day to repair the press. I do not know of other employees receiving extra "bonuses," but I did get a bonus in 1973 around June or July, before I made foreman for coming in early for about a week; i.e., at about II a.m. and working through until the end of my normal night shift. Then last year when I was made foreman, I returned to night shift from "days." When Bart asked me if I wanted to be night foreman, I said yes. Then I said; "let's talk money." And Bart agreed to give me an increase and also for my helper Larry Marshall, be- cause he would have to spend more time alone on my press (as my helper) because I spent time away from my press helping out the other pressmen in answering their questions and solving their production problems and checking the quality of their output. 6 As to overtime, when required, I will ask the men on night shift if they want to work overtime. Most of the overtime to be worked is decided during the days by other members of management; but if there is a prob- lem on the job, I will instruct a man to work overtime to finish the "rush" job, unless I can use another press to assist in completing the job on regular time. I would not contact Canazzaro at home, during the night shift, unless it is a serious problem that might require a lot of overtime which the customer might not pay for. I do not have occasion to talk to customers at night (I suppose because the customer is not available at those night hours). I do not make many decisions whether or not to run a certain job without calling Canazzaro at home. For example during all of 1975 to date, I called him at home at most eight or nine times. As to obtaining "stacks" of paper, I will instruct my "helper," "Oliver," to go down to the stockroom on the sixth floor; he does whatever I tell him, such as getting "dollies" for all the presses, obtaining chemi- cals or other materials for the pressmen; or assist a pressman in washing and cleaning his press after a run. He, "Oliver" is under my sole supervision, Canaz- zaro discussed it with me as to giving "Dave" a chance in the department: and I was asked if I would accept "Oliver" from the day shift pressroom, as Canazzaro's "helper." It was my decision to bring him on nights and if I had not known he was a good worker I would not have agreed to let him be my "helper" on night shift. After three or four months I will recommend Oliver for a raise, to Canazzaro. In fact about Febru- ary 1975, 1 went to Bill Donoland recommended that "Dave" (my helper on "nights' at that time) get an increase in wages. I know "Dave" got the increase, because Donoland told me he gave it to Dave, a week later. I should add that when Rene Carrion quit last De- cember [1974], there was no foreman on night shift until I took over. I know, from Canazzaro himself or the other employees, that Canazzaro stayed until 8 p.m., or, 9 p.m., or 10 p.m. each night to handle the production problems (I was on day shift then). Based upon the foregoing, I find that, for approximately During his testimony as a witness, Simmons steadfastly maintained that all mention of "A J Bart" or "Bart" which appear in his affidavits has reference to the corporate entity and not President Bart. the individual Simmons' testimonial stance in this regard was taken, in my opinion, in an apparent attempt to shield President Bart and hence. Respondent, from an) culpabilils under the Act for refusing in bad faith to bargain with the Union on and after October 19. 1974, based upon the petition which was drafted and circulated by Simmons. a known statutory supervisor I require no extenslse research of materia nredica to fortify the conclusion that corporate enterprises are not gifted with srocal chords AccordinglN. I find that Sim- mons' references to "A. J. Bart" and "Bart" in his statements were refer- ences to Alvin J. Bart. the man 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 months prior to July 1974, while Simmons labored on the day shift, Pressroom Foreman Canzoneri worked on the day and night shift until as late as 10 p.m. because he had no night shift foreman to spell him during the late evening hours. I find that, in July 1974, Respondent's president Bart approached Simmons and inquired whether the latter wished to assume the duties of night shift foreman over approximately seven employees at a substantial increase in pay to fill the slot left vacant by the departure of night foreman Rene Carrion in December 1974. I find that Sim- mons accepted this promotion and transfer, and that. thereafter, he possessed and exercised the authority to grant overtime pay to employees in the pressroom; to di- rect responsibly the work routine of employees; and to ef- fectively recommend the payment to them of wage increas- es. In sum, I find and conclude that, at all times material herein, Simmons was a supervisor within the meaning of Section 2(1 1) of the Act. I further find that, after Simmons drafted and circulated his petition to the employees on October 16, 1974, which indicated that he and the employees no longer desired that the Union collectively represent them and that they de- clined to release their names and addresses to that labor organization, Simmons presented the signed document to Respondent's president Bart and verbally reiterated its content to him. I find that, when Bart received the petition and learned that Simmons had prepared and circulated it. the former was patently aware that Simmons was a statu- tory supervisor and that the signed petition was a product of Simmons' efforts. I further find and conclude that, when attorney Hus- band sent his letter of October 19, 1974, to Union Repre- sentative Seide, informing Seide that Respondent harbored a bona fide doubt as to the Union's continued majority status because of the existence of the petition, and there- fore declined to recognized and bargain with the Union or to turn over the names and addresses of the unit employ- ees, this doubt could not have been bottomed upon the valid "objective considerations" to which the Board ad- verted in Celanese Corporation of America 8 in assessing the propriety of an employer's withdrawal of recognition from a union after the certification year had run. For, as the record amply demonstrates, Bart was fully apprised that the Fetition and its contents did not necessarily reflect the spontaneous and uncoerced desires of his unit employees regarding collective representation, but was fostered and nurtured by a management agent. 9 Accordingly, I conclude that, on and after Oct, ber 19, 1974, Respondent failed and refused to bargain in good faith with the Union and declined to provide the Union with the names and addresses of the unit employees, in 7Foreman Canzoneri testified that he afforded men who .worked on the night shift a shift-differential increase of 10 percent. In his affidaisit of MaN 12. 1975, Simmons recounted that, when he transferred to night twork in Julv 1974, his weekly wage jumped from $290 to $350. an increase fa;r in excess of 10 percent. I can only conclude that the added emolument was i, payment for services to Simmons of a kind different from those Incient simply to working on the night shift. 995 NI.RB 664 (1951). 9 Sander, Inc. & Zeaol. Inc dhb a Eden Forest & (iGarden of Edend l .. dr.i.l. Homles, 213 Nl.RB 734 1974). violation of Section 8(a)(5) of the Act. I also conclude that, by granting wage increases to those employees in Decem- ber 1974. without prior consultation and bargaining with the Union over these matters, Respondent further offended the provisions of Section 8(a)(5). IV tilE FFFEC( 0F rTIE U:NFiAIR LABOR PRA(TICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Responent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. v THE REMEDY Having found that Respondent has violated Section 8(a)(5) of the Act, I shall order that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that, on and after October 19, 1974. Re- spondent unlawfully refused to bargain with the Union as the duly designated collective representative of an appro- priate unit of employees at its New York City plant. I shall therefore order that Respondent, upon request, negotiate and bargain with that labor organization in good faith and, if agreement is reached, reduced that compact to writing and sign it. I have also found that, on and after October 19, 1974, Respondent failed and declined to provide the Union with a current list of the names and addresses of all unit em- ployees, an obligation which is statutorily demanded when requested by a duly designated bargaining agent. I shall, accordingly, order that Respondent, upon request, provide the Union with this information. Finally, I have heretofore found that, in December 1974, Respondent unilaterally granted wage increases to the unit employees without prior consultation with the Union. I shall, therefore order that, henceforth, Respondent notify the Union of its intention to enhance the wages of those employees and afford that labor organization an opportu- nity to bargain over any future alteration of this term and condition of employment. CON(LUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All pressmen and preparatory department employees including pressmen, assistant pressmen, cameramen, strip- pers, platemakers, opaquers, and apprentices in both de- partments, employed by Respondent at its New York City. New York, plant, excluding office clerical employees, bindery employees, shipping department employees, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining 252 ALVIN J. BART AND CO., INC. within the meaning of Section 9(c) of the Act. 4. By refusing to negotiate and bargain with the Union, on and after October 19, 1974, in good faith, concerning the wages, hours, and other terms and conditions of em- ployment of the employees in the unit heretofore found appropriate, Respondent has engaged in and is engaging in unfair labor practices banned by Section 8(a)(5) of the stat- ute. 5. By declining to provide the Union with a current list of the names and addresses of the unit employees, Respon- dent has engaged in and is engaging in unfair labor prac- tices within the purview of Section 8(a)(5) of the Act. 6. By unilaterally granting wage increases to the unit employees, without prior notice to the Union and without affording the Union an opportunity to negotiate and bar- gain with Respondent over their extent, Respondent has engaged in and is engaging in unfair labor practices pro- scribed by Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are encompasses within the ambit of Section 2(6) and (7) of the statute. Upon the foregoing findings of fact, conclusions of law. and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act. as amended, I hereby issue the following recommended: ORDER ' The Respondent, Alvin J. Bart and Co., Inc., New York. New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing, upon request, to bargain in good faith with New York Printing Pressmen & Offset Workers Union, Local 51, IPP & A.U. of N.A.. AFL-CIO, regarding rates of pay, hours of employment, or other terms and condi- tions of employment of all employees in the unit herein found appropriate. (b) Refusing to provide said Union, upon request, with a current list of the names and addresses of the unit employ- ees. (c) Unilaterally granting wage increases to unit employ- ees without prior notification to and consultation with the Union and without affording the Union an opportunity to negotiate over the extent of them. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in in Section 7 of the Act. 2. Take the following affirmative action which I deem is necessary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union regarding rates of pay, hours of employment, and other terms and conditions of employment of the employees in the appropriate unit, and, if an agreement is reached, re- duce said agreement to writing and sign it. (b) Upon request, provide the Union with a current list of the names and addresses of all unit employees. (c) Notify and consult with the Union regarding any contemplated wage increases to be afforded to the employ- ees in the appropriate unit, and bargain with the Union with regard to them. (d) Post at its place of business in New York City, New York, copies of the attached notice marked "Appendix." " Copies of said notice, on forms to he provided by the Re- gional Director for Region 2, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places. including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 2. in writ- ing, within 20 days from the date of this Order. what steps have been taken to comply herewith. b0 In the event no) exceptions are filed as prosided hs Sec 102 46 of the Rules .and Reeulations of the National Labor Relations Board. the findings. conclusions, and renlcommended Order herein shall, as provided in Sec. 102 48 o.f he Rules and Regulation,, he adopted h, the Board and become its findings. conclusions. and Order. and all (objections thereto shall be deemed ai;lled for all purposes. H In the eent that this Order is enforced h' a Judgment of a lnited States Co burt of Appeals, the w'ords in the notice reading. "Posted hb Order of the Nallonal I abor Relations Board" shall read "Posted Pursuant to a Judgment of the t nited States ( Court of Appeals Enforcing an Order of the National l I.abolr Relatins Board " APPENDIX Noii(E To EMPLOYEES POSTED B'Y ORDER OF THE NATIONAL LABOR RELATIONs BOARD An Agency of the United States Government WF WILI NOT refuse, upon request, to bargain in good faith with New York Printing Pressmen & Offset Workers Union. Local 51. IPP & A.U. of N.A.. ALF- CIO. regarding rates of pay. hours of employment, or other terms and conditions of employment of all em- ployees in the unit certified by the National Labor Relations Board in Case 2 RC-15771. If a collective- bargaining agreement is reached, we will sign it. WE. W.I. NOT refuse, upon request, to provide the above-named Union with a current list of the names and addresses of the unit employees. WE WILL nor unilaterally grant wage increases to unit employees without first notifying and giving the above-named Union an opportunity to bargain over the amount of the increases. WE WsIL. o01 in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. ALvIN J BaRr AND CO IN( 253