General Electric

GENERAL ELECTRIC CO. General Electric Company and Julius Borbely. Case 8-CA-9632 July 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon an amended charge filed by Julius Borbely, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 8, issued a complaint and notice of hearing on December 31, 1975, against Respondent, General Electric Company. The complaint alleged that General Electric had engaged in, and is engaging in, certain unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended. On January 13, 1976, General Electric filed an answer to the complaint, wherein it denied the commission of unfair labor practices and requested that the complaint be dismissed. On April 7, 1976, the Respondent, the Charging Party, and the General Counsel entered into a stipulation of facts for submission to the Board. In the stipulation the parties agreed that the charge, amended charge, complaint, and stipulation of facts constitute the entire record in the case; waived all intermediate proceedings before an Administrative Law Judge; and stated that they desired to have the case submitted directly to the Board for it to make findings of fact and conclusions of law. On May 17, 1976, the Board approved the stipulation and transferred the proceeding to itself. Thereafter, timely briefs were filed by General Counsel and Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the entire record herein, as stipulated to by the parties, as well as their briefs, and makes the following findings of fact and conclusions of law. FINDINGS OF FACT I. JURISDICTION General Electric is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of New York and maintains its corporate headquarters in I Sec. 11(4) provides, in relevant part, as follows: Witness summoned before the Board, its member, agent, or agency. 230 NLRB No. 91 Fairfield, Connecticut. General Electric operates a facility at 4477 East 49th Street, Cleveland, Ohio, the only facility involved herein, where it is engaged in the repair and service of electrical apparatus. Annually in the course and conduct of its Cleveland, Ohio, business operations General Electric ships goods in excess of $50,000 directly to points located outside the State of Ohio. General Electric is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, and its Local 707, herein collectively called the Union, are labor organizations within the meaning of Section 2(5) of the Act. A. The Issue The question presented is whether it is a violation of Section 8(a)(1) and (4) of the Act for the Respondent to have paid a bargaining unit employee 11 hours' wages, i.e., $86.26, for having appeared and testified in its behalf at an unfair labor practice hearing, while refusing to pay another bargaining unit employee, who appeared and testified in behalf of the General Counsel at the same hearing, the difference between the witness fee of $20 he received from the Board and his daily wage. B. The Stipulated Facts On September 24, 1975, an unfair labor practice hearing was held before an Administrative Law Judge of the Board in Case 8-CA-9213, in which Respondent here was the respondent. Pursuant to a subpena issued by the Board at the General Counsel's request, Julius Borbely appeared at the hearing as a witness for the General Counsel. In accordance with the pertinent provisions of the National Labor Relations Act,' Borbely, an hourly paid employee, was paid a witness fee of $20 for his attendance at the hearing in Case 8-CA-9213. Because Borbely was absent from work the entire day of the hearing, General Electric did not pay him his regular daily wage of $46. At Respondent's request another hourly paid employee, Andrew Bartko, appeared and testified at the same hearing on behalf of it. Respondent compensated Bartko for his time spent at the hearing by paying him the sum of $86.26, which represented shall be paid the same fees and mileage that are paid witnesses in the courts of the United States .... 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amount of wages he would have earned for 11 hours of work. Subsequent to the hearing in Case 8-CA-9213, Borbely requested that Respondent pay him the difference between the $20 witness fee he received from the Board and his regular daily wage of $46. Respondent refused to do so on the asserted ground that because Borbely's absence was due to his appearance as a witness at an administrative pro- ceeding, and not at a court proceeding, he was not entitled to payment of the difference under article XXV of the national agreement with the Union, which represents the employees at the Cleveland facility.2 Respondent acknowledges that it pays employees who appear at its request. Thereafter, the Union grieved Respondent's refusal to pay Borbely his regular daily wage as a violation of article XXV, section 3 of the National Agreement. The grievance was denied. The Union did not request arbitration of the matter. C. Contentions of the Parties The General Counsel contends that Respondent discriminated against Borbely by paying another bargaining unit employee 11 hours' wages for having appeared and testified in its behalf at an unfair labor practice hearing, while refusing to pay Borbely the differential between the statutory witness fee and his wages. The General Counsel argues, relying on Electronic Research Co. [I1],3, and Electronic Re- search Co. [II], 4 that in determining whether Respondent acted unlawfully, the test is whether the witness appearing against Respondent is disadvan- taged by Respondent's actions. Since Borbely was monetarily disavantaged by not receiving his full wages, while Respondent's witness Bartko did, the General Counsel asserts that Borbely was unlawfully discriminated against. Respondent contends that there has been no "discrimination" within the meaning of Section 8(a)(4), citing Electronic Research II, and Golden Arrow Dairy. 5 It argues that requiring such pay- ments would force an employer to finance its opposition. Further, Respondent relies on the ground that under the collective-bargaining agreement it is Art. XXV reads in pertinent part: Jury Duty i. When an hourly-paid employee is called for service as a juror, he will be paid the difference between the fee he receives for such service and the amount of straightime earnings lost by him by reason of such service, up to a limit of 8 hours per day. required to compensate an employee only for attendance at formal court proceedings. 6 D. Discussion In Electronic Research II, the Board concluded that an employer did not violate the Act when it refused to pay for time lost from work by three employees who had been subpenaed by the union as witnesses at a Board hearing, even though it paid regular wages to employee witnesses called by the employer. The Board said at 778: The earlier unfair labor practice proceeding was an adversary one in which each side subpenaed or called its own witnesses and compensated them for their time. In these circumstances to order Respondent to pay the employees for time lost from work in testifying against it is to require a litigant in effect to subsidize its opponent. In our view, Section 8(a)(4) was never intended by Congress to impose such a burden on a respondent employer. The General Counsel, in arguing that this state- ment is not dispositive, relies on the fact that in Electronic Research II the union's witnesses were not monetarily disadvantaged since the union had paid union witnesses fees which exceeded their wages. The General Counsel points to the fact that in Electronic Research I the Board found the employer's denial of a perfect attendance award to an employee absent from work to testify against the employer violative of Section 8(a)(4) and (1) where the employer granted the same to employees who appeared at the same Board hearing at the employer's request. The Board, consistent with that holding, also found a violation of Section 8(a)(4) and (1) when confronted with substantially the same facts in Electronic Research 11. Thus, the General Counsel contends that Electronic Research I as followed in Electronic Research 11 is controlling here, since the employee called by the General Counsel was disadvantaged. The Board in reaching opposite results in the two different situations presented in Electronic Research II was not drawing a distinction based on any 3. Similar makeup pay . . . will be granted to an employee who loses time from work because of his appearance in court pursuant to proper subpoena,.... 3 187 NLRB 733(1971). 4 190 NLRB 778 (1971). 5 194 NLRB 474(1971). 6 Neither party has requested that this matter be deferred to arbitration. Therefore the Board will not consider deferral to arbitration, but will decide the case on the merits. Pete Salemi d/b/a Central Ercavating Co., 225 NLRB 1106(1976). 684 GENERAL ELECTRIC CO. incidental monetary or other disadvantage which might have resulted.7 Rather, it was distinguishing between those situations where the employer's actions are directed at the employment relationship, as in the perfect attendance award matter therein, and those where they are note, as in the witness fee situation. In the latter instance, the obligation to pay witness fees is imposed by statute or fiat and not by the employment relationship.8 Whether summoned by an employer, a union, an individual party, or the General Counsel, the witnesses must be compensated by "the party at whose instance the witnesses appear," and the minimum amount of such compen- sation is fixed, as here, by the agency under its applicable rule. But there is no prohibition against a party paying its witnesses more than the minimum, or more than another party will pay their witnesses, nor should any adverse inferences be drawn against the party paying the higher amount merely from that fact. In this regard, we deem as reasonable a party's use of employee wages as the measure for determin- ing the fee to be paid its witness. Indeed, many parties, recognizing that an individual's employer is not obligated to pay him wages for time away from work testifying as a witness for them, use actual loss of earnings as a criteria for settling the witness fees they will pay. Furthermore, the obligation exists only between the party and its witnesses; it does not extend to witnesses called by others. It follows, then, that the witness fee paid by one party is not, nor should it be, the concern or affair of another party.9 In short, no party stands as the guarantor for equal payment to all witnesses summoned by all parties to the proceeding. A fortiori, an employer, as here,-or a union in a case not involving an employer as a party 1 0-is not as a general proposition obligated to pay opposition witnesses anything in connection with witness fees. Consequently, we conclude that an 7 In his dissent. Chairman Fanning states that our reliance on Electronic Research II is "misleading." In doing so he attempts to merge the basic rationale in that case with the alternative rationale (which he relied on as the sole basis for his agreement with the holding therein). Thus, though the alternative rationale was based on the fact that the employees were not disadvantaged, the basic rationale was not in any way dependent on that fact. X Sec. 11(4) of the Act referred to in fn. 1,. supra. See also Sec. 102.32 of the Board's Rules and Regulations, Series 8. as amended. 9 Chairman Fanning contends that the Board is encouraging parties to bid for witnesses. We do not believe that the payment of a fair fee constitutes "bidding" for witnesses nor do we believe such payments will have any effect on the credibility of their testimony. Our dissenting colleague must indeed have a low opinion of witnesses in Board proceedings to suggest that their testimony might be altered by the difference between what the General Counsel pays and the reasonable fee another party may pay. Of course, if the fee is not reasonable, but amounts to a bribe, it would constitute an interference with the Board's processes which we would not tolerate. While a determination of whether a fee is reasonable will necessitate some linedrawing, the problem is no more difficult with respect to witness fees than it is in many other situations. Unlike our dissenting colleague, we do not believe the necessity of making such determinations employer is not discriminating with respect to the employment relationship by not paying an employee called as a witness against it the difference between what such witness would have earned had he worked and what the party calling him as a witness is willing to pay. Nor do we believe that the failure of the employer to pay such difference to employees testifying against it is otherwise per se discriminatory, as the General Counsel's arguments may suggest. As we have previously stated, to hold that an employer must pay this difference would result in making employer liability dependent on what others are willing to pay, something we are unwilling to do.1 On the other hand, the situation is quite different where, apart from the matter of payment of witness fees and/or the amount thereof,12 the witnesses called by an opposing party are additionally denied the benefit of a term or condition of employment with which witnesses called by the employer nev- ertheless receive. Thus, in Electronic Research I and II, respectively, employees who testified on behalf of the employer were treated as though they had worked that day while employees who testified on behalf of an opposition party were treated as though they had been absent, as a result of which the former qualified for the perfect attendance award and the latter did not. Clearly, in such a situation the employer is penalizing those employees who are summoned to testify by the other side concerning a term and condition of their employment. Conse- quently, the prospect of being treated in such a disadvantageous manner concerning their employ- ment relationship makes employees reluctant to testify against their employer, or for an opposing party, thereby obstructing the Board's processes irrespective of proof of a discriminatory motive or union animus.13 True, in the witness fee situation the disparity in fees created by one party paying its witnesses more requires us to impose a rule requiring that an employer must pay employee witnesses called by another party on the same basis that it pays its own employee witnesses. io Surely, it would not be argued in an 8(b) unfair labor practice proceeding context that a charged union would be required to pay the difference between what it paid its witnesses and what the General Counsel or other parties paid theirs. ii Golden Arrow Dairy, supra at 479. Chairman Fanning, in effect, is urging a system under which the party willing to pay witness fees which are higher than others pay but still reasonable is permitted to do so only if it also subsidizes the witness fees of all other parties. Such a system is such a drastic modification of the usual system of witness fee payments that it is highly doubtful that we have the authority to put it into effect. In any event, it should be considered only through the use and with the safeguards of the rulemaking procedures. 12 It is noted that in both Electronic Research I and 11 there was no finding or contention that witness fees were not paid to any of the witnesses, irrespective of who called them. The issue involving awards for perfect attendance, therefore, was clearly separate and one which was directly related to the employment relationship. 13 Electronic Research 1, supra at 737. 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than another party is willing, or allowed, to compen- sate its own, does result in the monetary disadvan- tage of the latter. But that is not the fault of the higher paying party or within its immediate control. Nor is such a disparity due to actions aimed at the employment relationship. Consequently, whatever similarities superficially appear to exist between the two different situations, result, as we have found, from different obligations, considerations, and mo- tives, and hence in reality are unrelated in applica- tion and meaning. Thus, in sum, we find that there is nothing unlawful in an employer using the wages of witnesses as the measure of his compensating them for witness fees while not also paying employees called by other parties the difference between witness fees they receive from such parties and what they would have been paid as wages for the time they testified, since the employer's actions are not directed at the employment relationship.14 However, if an employer distinguishes between its employees in their employ- ment relationship on the basis of whether they were summoned as witnesses by it or by the opposition, it acts unlawfully. Accordingly, for all the reasons discussed above, we conclude that the principle established by the Board in Electronic Research II with respect to the payment of witness fees is dispositive of the issue in the instant case.15 We therefore find Respondent has not violated the Act and shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismisssed in its entirety. CHAIRMAN FANNING, dissenting: As indicated in the stipulation of facts the Charging Party, Borbely, an employee of Respon- 14 Our dissenting colleague on the one hand argues that we should find a violation because a term and condition of employment-wages-is involved. On the other hand he argues that even if wages are not involved there is a violation. Thus, while he argues that wages are a term and condition of employment, he recognizes the issue does not turn on the measure used to determine the extra compensation, but on whether any extra compensation can be paid. For the reasons set forth above, we believe that employers can pay their employee witnesses a reasonable amount over the statutorily proscribed fee. Savair Manufacturing Co., 414 U.S. 270 (1973), cited by our dissenting colleague is inapposite. There the Court found the waiver of the initiation fee was made to induce a certain course of action-the signing of the authorization card. Where the employer calls an employee as a witness the employee is either under subpena or could be subpenaed and therefore is compelled to truthfully testify regardless of whether or not he or she is paid more than the statutorily set fee. The added payment over this amount is simply an effort to compensate the employees more fully in terms of lost wages or lost free time, not to induce the employee to do anything he or she would not otherwise be required to do. dent, pursuant to subpena of the General Counsel appeared at an unfair labor practice hearing in which Respondent was also respondent. He was paid the statutory witness fee of $20 by the Board; Respon- dent did not pay him his regular daily wage. Fellow employee Bartko also appeared at that hearing but testified on behalf of Respondent; he was paid $86.26 by Respondent which represented wages for 11 hours work.'6 Thereafter, Borbely requested that Respondent pay him the difference between the $20 statutory witness fee he received from the Board' 7 and his regular daily wage of $46, contending he was entitled to such payment under the collective-bar- gaining agreement. Respondent refused to do so on the ground that the collective-bargaining agreement which provided for witness fees did not apply since Borbely's appearance was as a witness at an administrative proceeding and not a court proceed- ing. Respondent nevertheless paid Bartko, who appeared at its request, his regular hourly wages for time spent at the hearing. On these facts the only conclusion that I can draw is that Respondent's denial of the difference between Borbely's regular wages and the statutory fee while paying Bartko's wages, when it had no contractual or legal obligation to pay either, was disparate treat- ment based on whether the testimony was on behalf of or against Respondent's interests. Such treatment is discrimination within the meaning of Section 8(a)(4).?8 Moreover, in addition to being discriminatory such disparate treatment may lead to abuse of the Board's processes. To say, as do my colleagues, that the amounts paid as witness fees are no "concern or affair" of the other parties ignores reality. For, at what point, if any, will the amount of the witness fees tend to influence testimony or the willingness to given testimony? Will not the loss of a major part of a day's pay, when fellow employees receive a day's pay, or more, as here, for testifying for the employer make employees reluctant to testify against their 5 In light of this determination, we find it unnecessary to pass on Respondent's contention that its action in refusing to pay Borbely the differential payment is justified by the terms of article XXV of the collective-bargaining agreement and Respondent's interpretation thereof. 16 Although this was more than a regular day's wage, it presumably was compensation for the number of hours he spent at the hearing. i7 The General Counsel, of course, is limited to the payment of the statutory amount. This record affords no basis for determining why it was necessary to subpena Borbely, a union steward at the time of the hearing, and whether he was reluctant to testify, and to attempt to do so would be pure speculation on my part. My primary concern, however, in this type case is the subpenaed witnesses, whose statements and testimony are necessary, but who will not testify voluntarily and are reluctant to give statements or testify. is Sec. 8(a)4) makes it an unfair labor practice: to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act. 686 GENERAL ELECTRIC CO. employer? Will allowing such payments or the bidding for witnesses affect credibility? At what point will fees be considered bribes? What is a reasonable witness fee? I quite frankly do not presume to know the answers to these questions. But I do not think the Board should allow even the possibility that parties to Board proceedings will be encouraged to bid for witnesses or to treat them differently depending on who calls them to testify. In short, I prefer not to offer the opportunity for abuse of the Board's processes. At the risk of belaboring the point, I further believe that my colleagues' reliance on Electronics Research II, to support their position is misleading. For in that case while the Board did say, "In these circumstances to order Respondent to pay . . . is to require a litigant . . . to subsidize its opponent [Emphasis supplied.]," it also pointed out, albeit in a "more- over" context, that the employees testifying there for their employer received their day's wages which were less than the witness fees (required by statute) received by fellow employees subpened by the union.19 The Board then said at 778: The critical question is how were the union's witnesses disadvantaged. [Emphasis supplied.] And: We were asked to say that those who got less got preferential treatment and those who got more have been discriminated against and should receive still more. This we cannot countenance. Here the circumstances are different and the answer to the "critical question" is not only different but obvious. '9 Contrary to the contention of my colleagues in fn. 6. I have clearly acknowledged, as indicated above, that I am discussing the alternative or "moreover" rationale in Electronics Research II. Yet, since the majority even if in a "moreover" context considered the fact that no employees were disadvantaged as the "critical question." I cannot help but wonder if the basic rationale would have been the same if the employees there had been disadvantaged. 2" The basic reason why I would find the 8(aX4) violation is, as stated above, because employees may be treated discnminatorily or disparately depending on whom they testify for. And this is true whether the difference My colleagues also assert that the situation is different where, apart from witness fees, the witness- es called by an opposing party are additionally denied the benefit of a term or condition of employment which the employer's witnesses receive, such as the perfect attendance awards denied employees in Electronic Research I and II; they reaffirm that the denial of such awards is clearly a violation and conclude that: Consequently, the prospect of being treated in such a disadvantageous manner concerning their employment relationship makes employees reluc- tant to testify against their employer, or for an opposing party, thereby obstructing the Board's process irrespective of proof of a discriminatory motive or union animus. But will not employees likewise be reluctant to testify when the most basic of terms and conditions of employment, i.e., wages, are involved.20 If the denial of a perfect attendance award will obstruct the Board's processes and is inherently discriminatory, why is the payment of wages to employees who testify for their employer and the denial of the same to employees who testify for their employer's opponent any different? In conclusion I would find that Respondent's refusal to pay the difference between the witness fee and a day's pay to Borbely while at the same time paying Bartko's wages not only constitutes discrimi- nation within the meaning of Section 8(a)(4), and restraint and coercion within the meaning of Section 8(a)(1), but can lead only to abuse of the Board processes. in the amount is $5, $10, or the difference between the statutory amount and a day's pay. After all, in Savair Manufacturing Co., 414 U.S. 270 (1973), the Supreme Court was concerned with the waiver of an initiation fee of S10; it noted that a $10-fringe benefit offered by an employer in the context of an election campaign would violate the Act. In Savair the impropriety, according to the Court, was the inducement to possibly save $10 by signing a card for the union. Here the impropriety is the inducement resulting from the difference between the statutory witness fee and at least a day's pay (maybe more by my colleagues' standards) for giving statements or testimony on the employer's behalf 687