Lincoln Hills Nursing Home, Inc.

510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lincoln Hills Nursing Home, Inc. and James Tin- dall. Case 25-CA-13954 April 19, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On February 21, 1984, the Board issued its Deci- sion and Order in the instant proceeding, 1 adopting Administrative Law Judge Lowell Goerlich's fmd- ing, inter alia, that the Respondent's decision to lay off James Tindall violated Section 8(a)(3), (4), and (1) of the Act. The layoff was found to violate both Section 8(a)(3) and Section 8(a)(4) of the Act because it was in part a result of a continuation of discrimination found in an earlier Board case 2 (i.e., the Respondent's elimination of one full-time main- tenance position for antiunion reasons) and in part, based on the Respondent's antipathy toward Tin- dall because of adverse testimony that he had given in that earlier case. The Board also adopted the judge's recommended Order requiring the Re-, spondent to offer Tindall reinstatement and back- pay. Thereafter, the Board petitioned the United States Court of Appeals for the Seventh Circuit for enforcement of its Order. On August 29, 1986, the court issued an unpub- lished opinion, upholding the Board's fmding with respect to the Respondent's unlawful motives for laying off Tinda11. 3 The court noted, however, that a significant policy question was raised by the Re- spondent's exceptions before the Board—"that Tin- dall deliberately lied on material issues [in his testi- mony in an earlier unfair labor practice proceeding before Judge Wagman], thereby disqualifying him- self from further employment"—and by the sugges- tion in the Board's brief to the court to the effect that the Board might, in its discretion, deny Tindall the usual remedy of reinstatement and backpay in such circumstances. Because the Board's decision did not address the matter of whether Tindall gave deliberately false testimony and how that testimony should affect his reinstatement and backpay, the court denied enforcement and remanded the pro- ceeding to the Board so it could expressly pass on the policy question. On April 1, 1987, in accordance with the court's remand, the Board issued an Order (unpublished) 1 268 NLRB 996. 2 266 NLRB 740 (1983) 2 The court also found that the Respondent's assertion that Tindall's testimony had nothing to do with his layoff and that the Respondent would recall Tindall if Alvey left foreclosed any claim that Tindall was discharged because he lied remanding this proceeding to Administrative Law Judge Leonard M. Wagman, who in the proceed- ing before him had heard Tindall's testimony and made credibility findings on it. Judge Wagman was directed to make an initial determination of the nature' of Tindall's testimony in that earlier pro- ceeding and its implications for the reinstatement and backpay remedy in the instant proceeding. On May 26, 1987, Judge Wagman issued the at- tached supplemental decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed lim- ited cross-exceptions and an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs4 and has decided to affirm the judge's rul- ings, fmdings, and conclusions and to adopt the recommended Order.5 ORDER The -National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Lincoln Hills Nursing Home, Inc., Tell City, Indiana, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order. 4 The Respondent's request for oral argument is denied as, m our opin- ion, the record in this case, including the exceptions and briefs, adequate- ly presents the issues. 5 We accordingly reaffirm the Order as originally reported at 268 NLRB 996 (1984). In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be com- puted at the "short-term Federal rate" for the underpayment of taxes as set out m the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amend- ment to 26 U.S.C. § 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). Cornele A. Overstreet, Esq., for the General Counsel Howard E. Cole, Esq. (Beverly Enterprises), of Pasadena, California, for the Respondent. James Tindall, of Tell City, Indiana, pro se, for the Charging Party. SUPPLEMENTAL DECISION LEONARD M. WAGMAN, Administrative Law Judge. On 1 April 1987 the Board issued its Order remanding this proceeding to me for determination of whether James Tindall, in his testimony before me in an earlier prooceding, 266 NLRB 740 (1983), enfd. 735 F.2d 1367 (7th Cir. 1984), had deliberately given false testimony and is so, what effect the Board should give that circum- stance in determining Tindall's entitlement to reinstate- ment and backpay in the instant proceeding. The Board found in the instant case that the Respondent had laid 288 NLRB No. 60 LINCOLN HILLS NURSING HOME 511 Tindall off in violation of Section 8(a)(4), (3), and (1) of the Act. The Board's Order required that Respondent offer reinstatement to Tindall and make him whole by paying backpay to him After carefully reviewing James Tindall's testimony before me in the previous case, recalling Tindall's de- meanor as he testified in that proceeding, and on consid- eration of the General Counsel's timely filed brief, I make the following FINDINGS OF FACT A. Background In the earlier case, James Tindall testified in support of allegations that the Respondent had violated Section 8(a)(1) and (3) of the Act, by warning Tindall to stay away from employee Ralph Alvey and by refusing to re- instate Alvey to full-time employment because Alvey supported the Union and participated in an economic strike. Tindall's testimony before me covered approxi- mately 140 pages of transcript. The small portions of Tindall's testimony I did not credit, and which I have considered, pertained to some conversations between Tindall and the Respondent's administrator, Roger Am- brose. Tindall did not benefit from either the reinstate- ment or the make-whole provisions in the earlier order. B. James Tindall's False Testimony Tindall's false testimony, if believed, would have sup- ported the allegation that the Respondent in the earlier case had withheld full-time employment from employee Alvey for union reasons and, thus, had violated Section 8(a)(3) and (1) of the Act. On direct examination, in that earlier case, James Tindall testified that in June or July 1978, in a conversation with Respondent's administrator, Roger Ambrose, he requested Ralph Alvey's recall from layoff to help with maintenance work. According to Tin- dall, Ambrose replied that he was not going to recall Alvey because of Alvey's affiliation with the Union. Tin- dall also asserted that Ambrose said that he would sooner contract out the maintenance work than recall Alvey. According to Tindall, 2 to 4 weeks after this con- versation, he and Ambrose had a similar conversation. Tindall's direct testimony also included an account of several other conversations with Ambrose, during the strike in April or May 1977. In those exchanges, Am- brose complained that during contract negotiations Alvey, who was a member of the Union's bargaining committee, had talked to Ambrose "like a dog." This tes- timony, if credited, would add further evidence of hostil- ity toward Alvey's union activity. Cross-examination showed glaring inconsistences be- tween Tindall's testimony on direct examination and his pretrial affidavit. Twice in his pretrial affidavit, dated 5 March 1980, Tindall had told of a conversation with Ambrose in which Alvey's possible recall had been dis- cussed. On cross-examination, Tindall conceded that on the first page of his affidavit he had stated that Ambrose had told him that Respondent would not recall Alvey for full-time employment because it "didn't have enough money to pay two men full time." At a second point in his affidavit, Tindall stated that on another occasion, Ambrose had said he would not rehire Alvey "because of the money situation." When pressed to explain the in- consistency between his testimony before me and the af- fidavit, Tindall seemed uneasy as he answered: "At the time, I may not have remembered to have told [the Board agent] that." A few minutes later, Tindall contra- dicted himself when he testified that he had never for- gotten the contents of his conversations with Ambrose about the Union and Alvey. Tindall's testimony leaves unexplained why he did not contact the Board's Region- al Office and repair the claimed inadvertencies. A substantial change in Tindall's recollection before me, in comparison with the content of his pretrial affida- vit, persuaded me that the omissions form his affidavit were not inadvertent. For in his 1980 affidavit, Tindall declared that he "didn't understand why Alvey wasn't put on full time." Yet, 1 year later, before me, he testi- fied that in 1978, after talking to Ambrose, he knew that Alvey was not on full time because he supported the Union. One more sample of testimony on cross-examination reinforced my impression that Tindall was adding antiun- ion content to Ambrose's remarks about Alvey's recall. First, Tindall denied ever telling Alvey that Respondent had not recalled him to full-time employment because of his union activity. Two questions later, Tindall conceded that he had informed Alvey of Ambrose's remarks. When asked: "When did you tell Mr. Alvey about that?" Tindall replied: "Let's see. I don't remember just exactly the date when it was I started talking to Mr. Alvey about what was going on for fear of my own job." Tindall's substantial inconsistency, his reluctance to provide even an approximate time for his asserted report to Alvey, and his hesitant response to the last question caused me to doubt seriously that Tindall had ever told Alvey of Ambrose's asserted remarks. Further, this lapse in Tindall's testimony reinforced my conclusion that he had never heard the alleged incriminating remarks. This episode, together with the factors recited above, have now convinced me that the portion of Tindall's testimo- ny that added antiunion motivation to AmbroSe's re- marks regarding Alvey's recall was a deliberate fabrica- tion. I have also rejected Tindall's testimony that Ambrose complained to him about Alvey's conduct at the bargain- ing table. In my view, this assertion, which was absent from Tindall's affidavit, was part of his deliberate effort to put words in Ambrose's mouth. Except for his attempt to embroider Ambrose's re- marks to him, Tindall otherwise impressed me a a credi- ble witness. I therefore accepted the remainder of his tes- timony in 266 NLRB 740 (1983), enfd. 735 F.2d 1367 (7th Cir. 1984). Analysis and Conclusions The issue presented here is whether Tindall by deliber- ately and knowingly giving false testimony in the earlier case, lost his entitlement to reinstatement and backpay in the instant proceeding. Respondent takes the position that Board policy requires withholding reinstatement and backpay from Tindall. The General Counsel argues that 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as Tindall did not deliberately give false testimony before me, Board policy would allow him to enjoy the reinstatement and backpay that the Board has ordered in the instant case. For the reasons stated below, I agree that under Board policy Tindall's false testimony did not impair his entitlement to reinstatement and backpay in this case. There is a strong suggestion in Board case law that employees who suffer loss of employment because they deliberately and knowingly gave false testimony against their employer are not entitled to the Act's protection. See Big Three Industrial Gas Co., 212 NLRB 800, 803 (1974), enfd. 572 F.2d 1404 (5th Cir. 1975). Nevertheless, I have found no controlling Board precedent to guide me in the instant case, where the employee's deliberate and knowing lies did not cause his loss of employment, which was found in this case to be violative of Section 8(a)(1), (3), and (4) of the Act. However, I have found guidance in cases involving false testimony in circumstances analogous to those before me here. In Service Garage, 256 NLRB 931 (1981), the Board rejected a discriminatee's deliberately and willfully false testimony about his age as ground for withholding his resinstatement and backpay. The Board found that the discriminatee's intentional falsehood had no impact on the Board's unfair labor practice findings and conclusions. The Board concluded that the discri- minatee by this lie had not abused the Board's unfair labor practice proceedings, and thus had not forfeited the remedy. Service Garage, supra. The Board's current policy toward discriminatees who intentionally conceal earnings from employment during their backpay periods also provides some help in resolv- ing the issue before me. In American Navigation Co., 268 NLRB 426, 427 (1983), the Board announced "that dis- criminatees found to have willfully concealed from the Board their interim employment will be denied backpay for all [calendar] quarters in which they engaged in the employment so concealed." In explaining this policy, the Board called attention to Section 10(c) of the Act which authorizes the Board to remedy unfair labor practices by "affirmative action, in- cluding reinstatement of employees, with or without back- pay, as will effectuate the policies of the Act [emphasis added]." Ibid. Reflecting on the Supreme Court's inter- pretation of that section, in Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941), and in Shepard v. NLRB, 459 U.S. 344 (1983), the Board declared that the test it was apply- ing was whether withholding backpay in whole or in part effectuates the policies of the Act. American Naviga- tion Co., 268 NLR13 at 427. The Board went on to apply the test by considering two matters. The first was the respondent's "liability for the consequences of its unlawful conduct." The second was "the Board's administration of its compliance pro- ceedings consistent with the public interest." Id. at 428. Applying these principles to the facts of American Navi- gation Co., the Board denied backpay for the third and fourth quarters of 1979, on the ground that the discrimin- atee concealed employment that apparently occurred during both quarters. The Board awarded backpay for the remaining two calendar quarters for which net back- pay was due. Id. at 429. In the Board's view, this result denied a windfall to the discriminatee, discouraged others from abusing the Board's process, and required the Respondent to suffer the consequences of its unfair labor practice. Id. at 428. Applying the Board policy expressed in American Navigation Co., supra at 427-428, to the instant case, I have considered the Respondent's liability for remedying its violations of Section 8(a)(4), (3), and (1) of the Act,1 and the Board's administration of its unfair labor practice proceedings "consistent with the public interest." See also Big Three Industrial Gas Co., supra at 803; and Iowa Beef Packers, 144 NLRB 615, 622 (1963), enf. denied in pertinent part 331 F.2d 176, 185 (8th Cir. 1964). If Tin- dall had deliberately given false testimony in the instant unfair labor practice proceeding, in which he has a bene- ficial interest, the purpose of the Act might better be served by depriving him of reinstatement and backpay, notwithstanding a finding that his loss of employment re- sulted from conduct violative of the Act. However, that would effectuate the policies of the Act in this case. Here, Tindall's deliberate false testimony did not enti- tle Respondent to escape liability for violating the Act. For, Tindall's false testimony played no part in the Board's conclusion that Respondent had violated Section 8(a)(4), (3) and (1) of the Act by laying him off. Indeed, Judge Lowell Goerlich found Tindall to be a credible witness in the instant proceeding. Thus, it cannot be said that Tindall abused the Board's unfair labor practice pro- ceedings for his own benefit. Nor did Tindall stand to gain personally from his false testimony before me in the earlier case. None of the vio- lations found in that case entitled Tindall to receive any remedial benefit. Moreover, his deliberately false testimony was of little moment. It constituted a very small part of his otherwise , credible testimony and played no part in the outcome of that case. In sum, I find that Tindall's deliberately false testimo- ny before me in the earlier case was not sufficient to de- prive him either backpay or reinstatement in the instant case. Were I to deny him these remedies, I would be providing Respondent "with an unjustified windfall and . . . [permitting] it to avoid the consequences of its un- lawful conduct for no useful purpose." American Naviga- tion Co., 268 NLRB at 428. In short, I find that the public interest in vindicating the Act here outweighs the evil to be contemplated from Tindall's insignificant tres- pass on the truth. CONCLUSION OF LAW Notwithstanding that James Tindall deliberately and knowingly testified falsely before me in 266 NLRB 740 1 In Clayton-Willard Sales, 126 NLRB 1325, 1326-1327 (1960), the Board has recognized that: The remedy of reinstatement and backpay is not a private right, but a public right granted to vindicate the law against one who has broken it Its object is to discourage discharges of employees con- trary to the statute and thereby vindicate the policies of the National Labor Relations Act. The statute authorizes separation orders, not in the interest of the employees, but m the interest of the public They are not private rewards operating by way of penalty or of damages. LINCOLN HILLS NURSING HOME 513 lations Board's Order issued in this case on 21 February 1984. In complying with that Order, Respondent shall offer James Tindall immediate employment and, if his previous job is no longer available, Respondent shall offer to him a substantially equivalent position, shall make him whole for any loss of wages he may have suf- fered by reason of the Respondent's unlawful conduct, plus interest, and shall expunge from its files any refer- ence to Tindall's unlawful layoff, and inform him in writ- ing that this has been done and that evidence of his un- lawful layoff will not be used as a basis for future per- sonnel actions against him.3 (1983), enfd. 735 F.2d 1367 (7th Cir. 1984), I fmd that he is entitled to reinstatement and backpay as the Board heretofore ordered in the instant case. From these findings of fact and conclusion of law, and my assessment of James Tindall's testimony in 266 NLRB 740 (1983), enfd. 735 F.2d 1367 (7th Cir. 1984), I issue the following recommended2 ORDER The Respondent, Lincoln Hills Nursing Home, Tell City, Indiana, its officers, agents, successors, and assigns, shall comply in all respects with the National Labor Re- 2 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."