Stemun Manufacturing Co., Inc.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stemun Manufacturing Company, Inc. and District No. 82 of the International Association of Machinists, AFL-CIO. Case 9-CA-3189 January 31, 1969 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 2, 1965, the National Labor Relations Board issued a Decision and Order' in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and ordering that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the National Labor Relations Act, as amended. Subsequently, the Board filed a petition with the United States Court of Appeals for the Sixth Circuit for enforcement of its Order. Thereafter, on November 24, 1967, the Court handed down its Decision2 in which it neither denied nor enforced the Board's Order, but remanded the case to the Board for the purpose of taking additional evidence on the genuineness of a disputed memorandum. On January 18, 1968, the Board issued an order reopening the record and remanding the case for hearing before a Trial Examiner. The Board's Order directed a Trial Examiner to receive evidence on the subject of the disputed memorandum and to make findings of fact with respect thereto; to determine what credit, if any, should be given the memorandum; and further ordered that upon conclusion of such hearing, the Trial Examiner should prepare a Supplemental Decision. On October 28, 1968, Trial Examiner Joseph I. Nachman issued his Supplemental Decision, attached hereto, in which he found that the disputed memorandum was not in existence on or about the date it bears, and recommended that the Board adhere to and reaffirm its Decision and Order which issued on July 2, 1965. Thereafter, the Respondent filed exceptions to the Supplemental Decision together with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the remanded hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and brief, and the entire record in the '153 NLRB 1278 '386 F 2d 174 (C A. 6, 1967). case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board reaffirms its Order of July 2, 1965, and hereby orders that the Respondent, Stemun Manufacturing Company, Inc., Springfield, Ohio, its officers, agents, successors, and assigns, shall take the action set forth therein. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried at Springfield, Ohio, on July 30, 1968, pursuant to a decree of the United States Court of Appeals for the Sixth Circuit, entered November 24, 1967, remanding this proceeding to the National Labor Relations Board (herein the Board) for the purposes in said decree stated, and the Board's order dated January 18, 1968, reopening the record in this proceeding, pursuant to said remand. At the trial before me the parties were represented by counsel and were afforded full opportunity to examine and cross-examine witnesses, to adduce relevant testimony,' and to submit briefs The General Counsel and Respondent submitted briefs, which have been duly considered.' Upon the entire record in the case' including my observation of the demeanor of the witnesses while testifying, I make the following 'At the reopened hearing , the General Counsel called as a witness Robert A. Vaughn , Esq , a member of the Springfield , Ohio, Bar, who represented Respondent at an earlier stage of this proceeding Mr Vaughn, although directed to answer certain questions put to him , declined to do so on the ground that all information concerning this matter came to him solely by reason of the attorney-client relationship and was, for that reason, privileged . After all other testimony had been taken , the hearing was adjourned indefinitely to give the General Counsel an opportunity to decide whether or not he would seek enforcement of his subpena against Vaughn, but Counsel was admonished to advise me promptly of the course he would pursue so that in the event he elected not to institute subpena enforcement proceedings , the record could be closed by order Having no word from counsel for over 6 weeks , on September 12, 1968, 1 issued an order directing the General Counsel to show cause why the record should not be closed in order that I might proceed to a decision on the basis of the record as made On September 23, 1968 , the General Counsel filed a response setting forth that he regarded the record made as sufficiently complete and moved that the same be closed . Accordingly, I entered an order on September 24, 1968 , closing the record and fixing the time for briefs 'With respect to the issue involved, Respondent's brief submitted by Rector consisted of just one sentence reading as follows Since the General Counsel presented no evidence at this hearing respondent must conclude that the document in question is authentic and that said document establishes the fact that prior to any union activity at respondent' s plant, the discharge of Superintendent Skaggs and his relatives was decided upon and that said discharges promulgated [sic] the union activity. 'My order of September 12, 1968, also directed the parties to show cause why the transcript of evidence taken on July 30, 1968 , should not be corrected in the particulars set forth in an appendix attached to and made a part of said order The General Counsel responded that he had no objections to the corrections referred to No response was received from the other parties Deeming said corrections necessary to correctly reflect 174 NLRB No. 50 STEMUN MFG. CO. 289 FINDINGS OF FACT On May 7, 1964, International Association of Machinists (herein called the Union), filed a charge with the Board alleging that Stemun Manufacturing Company, Inc. (herein Respondent), discharged five employees because of their assistance to and support of the Union. On May 20, 1964, the charge was amended to include two additional alleged discriminatees The Board's investigation of the charge was conducted by William C. Mittendorf of the Cincinnati Regional Office. At this stage of the proceeding, Respondent was represented by Attorney Robert A. Vaughn. In the course of the Board's investigation, in which Vaughn fully cooperated, Mittendorf interviewed and took affidavits from Respondent President Muncy and Superintendent Kindell. These interviews took place in Vaughn's office where Mittendorf, in the presence of Muncy and Kindell, dictated the information they furnished either to a secretary or to a machine. Several days later, after the material had been transcribed in Vaughn's office, and some corrections which at least Muncy insisted upon were made, the affidavits were signed on June 17, 1964, before Vaughn as notary public, and the latter mailed the signed affidavits to Mittendorf at his office in Cincinnati. It is significant that nowhere in the affidavit which Kindell gave the Board does he mention having made any recommendation to Company President Muncy Also during the investigation, Mittendorf asked Vaughn to submit a written statement of Respondent's position with respect to the charges against the latter. In a nine-page letter dated June 10, 1964, Vaughn stated Respondent's reasons for discharging each of the alleged discriminatees named in the charge, as amended. On June 30, 1964, the Regional Director issued a complaint against Respondent which, in respects not here material, was amended August 17, 1964. Vaughn, as counsel for Respondent, filed an answer to both complaints; his answers, to the extent here material, averring that the several discharges were for cause. Hearing on the amended complaint was scheduled for September 22, 1964. On that date, with a Trial Examiner present, but before the hearing opened, the parties entered into an informal settlement agreement which the Regional Director approved. However, by order dated November 5, 1964, the Regional Director withdrew his approval of the informal settlement agreement,4 and issued a second amended complaints which was heard before Trial Examiner Whittemore on February 10 and 11, 1965, resulting in the Board's Order reported at 153 NLRB 1278 The answer to the last mentioned amended complaint, filed with the Regional Office on December 8, 1964, was signed on behalf of Respondent by Harvey B. Rector, a labor relations consultant; Vaughn at some undisclosed time having severed his connection with the case. At the hearing in February 1965, the principal issue litigated was whether the four employees then involved the evidence taken, and the proceedings before me, I now order the said transcript corrected in all respect set forth in the appendix to the aforesaid Order To Show Cause. 'The settlement agreement is not a part of the record The order of November 5, 1964, recites that under the settlement agreement Respondent was obligated to make whole one of the alleged discrimmatees by paying him the sum of $1,000 and post a notice covering the allegations of the complaint, and that Respondent failed to pay the money or post the notice 'The principal effect of said amendment was to reduce the number of alleged discriminatees from seven to four. were discharged because of their union activity Respondent contended that early in 1964, it hired Kindell as plant superintendent, with instructions to take such action as he might deem necessary to eliminate certain problems then allegedly current in the plant, that after such investigation Kindell prepared and submitted to Company President Muncy a memorandum, dated April 15, 1964, which is before the Union began its activity at Respondent's plant The memorandum referred to, which was introduced into evidence at the initial hearing as Respondent's Exhibit 2, and which Kindell testified he prepared and signed on the date it bears, sets forth his alleged recommendations to Muncy that the seven individuals mentioned in the original complaint be discharged, and the reasons for such recommendations. Muncy corroborated Kindell that said recommendations were submitted to and approved by him "on or about" April 15, 1964. Trial Examiner Whittemore discredited both Kindell and Muncy. For reasons set forth in his Decision (153 NLRB at 1282, fn. 5), he expressed doubt that Kindell prior to the hearing had seen said memorandum much less dictated it, and found that said document "was prepared just before the hearing, either by [Labor Relations Consultant] Rector or with his knowledge and consent, for the sole purpose of deceiving the Board in an attempt to make it appear that it was in existence before union activity in April began" (id. at p. 1282, emphasis as in text). Because he found the document in question not to be genuine, Trial Examiner Whittemore discredited both Muncy and Kindell, and concluded that the four employees then involved were discharged for their union activity, recommending to the Board that it order their reinstatement with backpay. On exceptions, the Board, "without holding that the document found by the Trial Examiner to be false was prepared by Rector or with his knowledge and consent," (id. at 1279, fn. 2), nonetheless found and concluded on the record as a whole that Respondent discharged the four employees involved because of their union activity, and adopted Trial Examiner Whittemore's ultimate findings, conclusions, and recommendations. The Court of Appeals, deferring decision on the Board's petition for enforcement of its order, remanded the case to the Board for further hearing, holding (386 F.2d 174, 175): The question of the genuineness of the disputed memorandum should be resolved. If the document is found to be genuine, the Company should be cleared of the charge of fraud made against it by the examiner. If the memorandum is found to be false, the record should so show. The case is remanded for the taking of additional evidence on the subject of the disputed memorandum and for findings of fact with respect thereto; also to determine what credit, if any, should be given to the memorandum as well as to the testimony of the company president and superintendent.b At the hearing before me the only witness called by the General Counsel who testified on substantive matters was William C. Mittendorf, who had investigated this matter initially and tried the case before Trial Examiner Whittemore on behalf of the General Counsel Mittendorf testified with respect to the investigation he had made prior to the issuance of the initial complaint, the manner 'The Board's order reopening the record and directing a further hearing follows the mandate of the court of appeals 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which he took the affidavits from Company President Muncy and Superintendent Kindell, and regarding his request to Attorney Vaughn for a statement of Respondent' s position on the charge filed by the Union and Vaughn's reply thereto, all as above set forth. With respect to the document concerning which the Court of Appeals remanded the case to the Board , Mittendorf testified that the first time he saw that document or had any information concerning its existence was on February 11, 1965, when it was offered in evidence at the initial hearing. In its opinion the Court of Appeals referred to testimony by Company President Muncy that he had received the questioned memorandum on or about April 15, 1964, prior to the advent of the Union , and that "Mr. Mittendorf has it in his files. " The court construed this statement to mean , as Respondent argued in its brief to that court (p. 6),' that Mittendorf had been given the questioned document in the course of his investigation of the case, and had it in his files prior to the hearing. The full text of the questions and answers to which the Court made references , is as follows Q. [by Mr. Rector] Now, then, after Joe [Kindell] had been there a while , then, did he give you a recommendation? A. Yes, he did. Q I hand you Respondent' s Exhibit 2 and ask you if that is the recommendation that he gave you? A Yes, this is the recommendation that Mr. Kindell gave me and also in accordance with my affidavit as I presented it and Mr. Mittendorf has it in his files, as well as we have our copy... . Being uncertain as to whether Muncy's last answer referred to the affidavit he gave Mittendorf or to Respondent' s Exhibit ' 2, the above questions and answers were read to Muncy when he testified before me, and he was asked which document he was referring to when he answered as last above quoted. Muncy replied that his answer referred only to the affidavit he had given Mittendorf in the course of the latter's investigation Indeed , when asked the point blank question if he had ever given Respondent's Exhibit 2 to any Board agent, Muncy replied, "I couldn't say that I definitely did," and admitted that he had no reason to believe that anyone else connected with his organization had done so . Muncy also admitted that in his conversations with Mittendorf which resulted in his affidavit furnished the Board in the course of the initial investigation , he did not "specifically 'the pertinent portion of Respondent's brief reads: . Mr Muncy testified that some considerable time prior to the hearing when Mr. Mittendorf was investigating the complaint that he gave Plaintiffs [sic] Exhibit No. 2 to Mr Mittendorf and that Exhibit No 2 was in the files of Mr Mittendorf long before the trial. This Mr. Mittendorf is the same man who was attorney for the Board in this case and actually tried this case Attorney Mittendorf, with full knowledge that he had in his files both the affidavit of Randall Muncy referring to Plaintiffs [sic] Exhibit No 2 and Exhibit No 2 and even after he, Attorney Mittendorf, had read the Examiner's Opinion, and before the hearing before the Board, Attorney Mittendorf did not deny and failed to reveal to the Board that he had in his files both the affidavit of Randall Muncy and Plaintiffs [sic] Exhibit No 2, which he had received from Randall Muncy weeks before the trial All of this despite the fact that he knew that the Trial Examiner in his opinion stated that he, the Trial Examiner, "believes that this document was prepared just before the hearing " The failure of Attorney Mittendorf to acknowledge to the Board that he had this exhibit in his file, with full knowledge what the Examiner said in his opinion, constitutes a bigger misrepresentation than the Trial Examiner accuses Rector of. mention" Exhibit 2, and did not remember whether during the aforesaid conversations with Mittendorf he indicated in any way that such document in fact existed. Muncy testified that Respondent's Exhibit 2, was given him by Superintendent Kindell "on or about" April 15, 1964. He specifically stated that his testimony in that regard was based on his recollection, and not on the fact that the document bears the date mentioned. It is significant, however, that when asked about other dates connected with these events he pleaded inability to recall because of the lapse of about 4 years Muncy further testified that the original of Kindell's memorandum, which physically became Respondent's Exhibit 2, was given to him. He testified that he produced it for "somebody," but never stated or even indicated who that "somebody" might be. Muncy was unable to state that he had given the document to Vaughn, and suggested that "Kindell may have done so." Although Muncy insisted that the document now in question was taken from a file obtained from Attorney Vaughn's office, he gave no testimony to explain how said document reached Attorney Vaughn other than his speculation above mentioned that Kindell may have given it to Vaughn.' Muncy further testified that sometime in the fall of 1964, he and Rector, who at that point represented Respondent, were together in Muncy's office when a file relating to this matter was brought in from Vaughn's office by some person whose identity he could not recall; that Rector, in his presence, went through that file, found the document in question, and promptly commented on its importance. Rector testified that he was retained in this matter in September or October 1964, and that his function was "to help them settle it or . . . make a recommendation as to what should be done about it." Rector's version of the manner in which the questioned document came to light differs somewhat from that given by Muncy. According to Rector, he went to the plant shortly after he was retained, and met with Muncy and Kindell; at his request for all files bearing on the case, Muncy produced several files, and Kindell left the room and shortly thereafter returned with his own file and a file which had been obtained from Attorney Vaughn; and he went through all these files and in one of them - he thought- it was the file which came from Attorney Vaughn, but was not sure - found the document in question. Rector admitted that he did not disclose to the Board the existence of the questioned memorandum prior to offering the same into evidence at the initial hearing. Ultimate Findings and Conclusions The sole issue in this case is whether the Kindell memorandum was prepared on April 15, 1964, the date it bears, as Respondent contends, or whether, as the General Counsel contends and Trial Examiner Whittemore found, said document was prepared subsequent to the events here involved and dated back to make it appear that the decision to terminate the employees involved was made before Respondent became aware of the Union's organizational activity After careful consideration of the entire record in this case, I am convinced and accordingly find and conclude, as did Trial Examiner Whittemore, that the document in question was not in existence on or about the date it bears, nor in June 1964, when Kindell 'It should be noted that Kindell, when testifying at the initial hearing, denied that he gave the questioned document to Attorney Vaughn. Kindell did not testify before me STEMUN MFG. CO. and Muncy were interviewed by Mittendorf, but was prepared at some time thereafter and dated back, for the purpose of deceiving the Board and making it believe that it was in existence before the union activity began at Respondent's plant.' My conclusion in this regard is predicated upon the totality of the following considerations. 1. The facts as distinguished from the conclusions stated in footnote 5 of Trial Examiner Whittemore's Decision which I find supported by the record.'° 2. Mittendorf's uncontradicted testimony, which I credit, that he never saw the questioned document until it was offered in evidence at the hearing before Trial Examiner Whittemore, and that in his interviews with Muncy and Kindell in June 1964, nothing was said which indicated that such a document existed. 3. The failure of Respondent to call Mrs. Nelson as a witness at the reopened hearing, or to explain its failure to do so. Assuming arguendo that Respondent had no reason, at the initial hearing, to believe that corroboration of Kindell was necessary or desirable, at the time of the reopened hearing the genuineness of Kindell's alleged memorandum had become the issue, and I can think of no witness whose testimony would be more pertinent than that of the person to whom the document was allegedly dictated, and who allegedly typed it Respondent's failure to call her, or explain its failure to do so, raises the permissible inference, which I draw, that had Mrs Nelson been called as a witness, she would not have corroborated Kindell, or otherwise supported Respondent's position. Halliday v. United States, 315 U.S. 94, 99; Interstate Circuit Inc. v. United States, 306 U.S. 208, 225-226. To the same effect see N.L.R.B. v. Reed & Prince Manufacturing, Co., 130 F.2d 765, 768 (C.A. 1). 4. The failure of Superintendent Kindell and President Muncy to mention the existence of the questioned document to Board Agent Mittendorf, in the interviews which resulted in the affidavits executed on June 17, 1964, and which were subsequently furnished to the Board. While the reasons stated in the affidavits for the discharge of the employees involved are substantially the same as those in the questioned document, I find it difficult to believe that if said document in fact existed at that time that neither Kindell nor Muncy, who were then trying to convince Mittendorf that the employees involved had been dischaiged for cause, would have failed to mention that piece of evidence which virtually established Respondent's defense. 'Because I deem it unnecessary to a disposition of the issue , I make no finding as to the identity of the person or persons responsible for the preparatiion of said document "Trial Examiner Whittemore stated that when the questioned document was offered in evidence "the two pages were unwrinkled and unsoiled, presenting the clear appearance of having come fresh from some typewriter." Almost 4 years have elapsed since the document was offered in evidence, and in the interim it has apparently been handled by many people. It now bears a number of fingerprints and smudges Accordingly, at this time I have no way of judging what the appearance of the document was in February 1965, and I make no finding in that regard Also, Trial Examiner Whittemore stated that when Kindell was asked to whom he dictated the questioned document he answered , "after much deliberation," Mrs Nelson. The transcript does not indicate any pause, hesitation, or deliberation by Kindell, but, of course, Trial Examiner Whittemore saw and heard the witness , while I did not, and his observations as to demeanor are entitled to great weight . Moreover, it may be noted that neither in its extensive exceptions filed with the Board, nor in its brief before the Court of Appeals, did Respondent question the accuracy of Trial Examiner Whittemore's finding that Kindell' s aforementioned answer was "after 291 5. Neither Muncy nor Rector, both of whom testified before me with respect to the manner in which the questioned document came to light, impressed me as credible witnesses. Muncy was not only evasive, having to be asked a number of questions several times over before he answered the question put to him, but his attitude while testifying was belligerent. At one point in his cross-examination Muncy without any provocation whatever exclaimed, "How long am I going to be subjected [to] harassment by the National Labor Relations Board," so that it became necessary to admonish him that his only function was to answer the questions put to him. It is a little strange also that Vluncy could testify from recollection, as he claimed, that the questioned document was given him by Kindell on or about April 15, 1964, but was unable to recall when other events took place, or that some of them had taken place at all, pleading that after the lapse of 4 years he could not remember. Rector's testimony before me, in one respect, I find inconsistent with statements he made in the prior hearing. At the hearing before me Rector testified that he had never read and "I didn't and I still don't, to this day" have a copy of the affidavit Kindell gave the Board in June 1964, and expressed doubt that the Board agent furnished a copy of it. The transcript of the prior hearing shows, however, that Rector produced Kindell's affidavit at the hearing, had it marked for identification as Respondent's Exhibit 1, and asked Board counsel to stipulate it into evidence as Kindell's testimony with respect to the facts therein stated. Although said exhibit was then rejected, it was subsequently received in evidence, and at that time the following colloquy appears. TRIAL EXAMINER: . . . Did you take this affidavit' MR. MITTENDORF: Yes, sir. TRIAL EXAMINER: Did you supply him [Rector] with a copy of it? MR. MITTENDORF: Well, I am sure that he had one. Mr. Rector had one here TRIAL EXAMINER: Have you been supplied with a copy of it? MR. RECTOR: Yes. 6. And finally, but by no means least in importance, is the fact that Attorney Vaughn who then represented Respondent, and who, according to Muncy and Rector, had the questioned document in his files, wrote the Board on June 10, 1964, giving Respondent's reasons for discharging the employees involved, and did not mention Kindell's alleged memorandum of April 15, 1964. That document, which gave the reason for the discharge of each of the employees involved, if it was in fact prepared before the union activity at Respondent's plant began, would appear to be a complete defense to the allegations of the complaint that said employees were discharged because of their assistance to and support of the Union. I find it difficult to believe that Attorney Vaughn would not have recognized the significance of that memorandum and that he would have failed to refer to it in his June 10, 1964, letter to the Regional Office by which he tried to convince the latter that a complaint herein was not justified." Accordingly, it is recommended that the Board adhere to and reaffirm its Decision and Order herein which issued on July 2, 1965 (153 NLRB 1278). much deliberation." Accordingly, I adopt his finding in that regard. "While no one of the considerations above mentioned, standing alone, might lead me to the conclusion I have reached, their totality makes that conclusion inescapable.