Waterbed World

808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Omnix International Corporation d/b/a Waterbed World and Union Independiente de Supermerca- dos y Tiendas Por Departamentos . Cases 24- CA-5160 and 24-RC-6985 July 13, 1988 ORDER GRANTING MOTION TO REOPEN RECORD AND FOR FURTHER HEARING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On September 30, 1987, the National Labor Re- lations Board issued a Decision, Order, and Certifi- cation of Representative in the above-entitled pro- ceeding, finding that the Respondent had violated Section 8(a)(1) of the Act by threatening employ- ees with unspecified reprisals for union activities and by creating the impression of surveillance of employees' union activities and had violated Sec- tion 8(a)(3) of the Act by refusing to permit em- ployee Marilu Marquez to rescind her resignation and by discharging employee Gloria Garcia in re- taliation for Marquez' union activities.' Thereafter, on January 22, 1988, the Respondent filed a motion to reopen the record and a separate motion for a protective order. The General Counsel then filed an opposition to the motion for a protective order, but stated therein that she did not oppose the motion to reopen the record. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. In its motion to reopen the record, the Respond- ent contends that it has obtained newly discovered evidence that should cause the Board to reverse its findings of fact and conclusions of law and find that the Respondent has not violated the Act. In support of its motion, the Respondent has attached an affidavit from witness Raisa Musa Quinones (Musa), in which she appears to recant certain tes- timony that she gave at the unfair labor practice hearing in this proceeding. At the hearing Musa testified that on May 3, 1985, Jaime Rico, the Re- spondent's treasurer and a supervisor of the Re- spondent within the meaning of Section 2(11) of the Act, told her that he had discovered that em- ployees wanted to bring a union into the Company, that Marilu Marquez was in charge of everything, that he regarded Musa as a good employee, and that she should not get involved in the union activ- ity. In our decision, we used Musa's credited testi- mony to find that the Respondent had violated Section 8(a)(1) as detailed above and that it had ' 286 NLRB 425 knowledge of and animus toward Marquez' union activities. The Respondent has appended a transla- tion of Musa's affidavit to its motion to reopen the record. The relevant parts of this translation, set out verbatim, follow: I testified in the administrative case # 24- CA-5160 held on December 16, 17, and 18, 1985 because my personal well-being and secu- rity were threatened by Marilu Marquez and Gloria Garcia and I now wish to correct my testimony declaring the following: On May 1, 3, 1985 nor at any other time, did Jaime Rico threaten me with retaliation or with rewards in relation to my employment or union activities. Jaime Rico did not tell me that it was not for my benefit to participate in union activities. Jaime Rico did not tell me that Gloria Garcia or Marilu Marquez were involved in the union. Jaime Rico nor any officer of Waterbed World has pressured me nor has promised me anything of value so that I would now make these declarations nor have I been offered em- ployment. Jaime Rico did not tell me not to get in- volved with the union. The Respondent contends that reopening the record is necessary because it argues that Musa's testimony formed the Board's only basis for finding that the Respondent had violated Section 8(a)(1) of the Act. Regarding the 8(a)(3) finding, the Re- spondent further contends that in the absence of Musa's testimony, the Board could not have in- ferred that the Respondent either knew of Mar- quez' union activities or harbored animus toward her for these activities at the time of the decision to discharge Garcia and to refuse to permit Marquez to rescind her resignation. The evidence the Respondent now seeks to in- troduce may tend to show, among other things, that Marquez and Garcia threatened Musa's well- being and security to induce her to testify falsely at the unfair labor practice hearing; that Musa testi- fied falsely at that hearing; that Jaime Rico did not threaten Musa with retaliation or rewards with regard to her employment; that Jaime Rico did not tell Musa that it was not to her benefit to be in- volved in union activities; and that Jaime Rico did not tell Musa that Garcia or Marquez was involved with the Union. After carefully reviewing the record, the judge's decision, the Board's decision, and the motion, we find that Musa's affidavit raises substantial ques- tions of whether an important witness testified 289 NLRB No. 101 WATERBED WORLD 809 falsely about material issues in this case. Accord- ingly, we shall grant the Respondent's motion to reopen the record and we shall remand the pro- ceeding to the judge to reopen the record, to take additional testimony to resolve the issues of credi- bility raised by Musa's affidavit, and to issue new findings of fact and conclusions of law in a supple- mental decision consistent with his resolution of the issues. As noted above, the Respondent also seeks a protective order from the Board in which the Board would order the parties not to disclose the information in the motion to reopen to Marilu Mar- quez or Gloria Garcia. In support of this motion, the Respondent cites portions of Musa's affidavit, quoted above, contending that Garcia and Marquez threatened her well-being and security to support its contention that confidentiality is required to protect Musa from "annoyance and oppression." The General Counsel has opposed the motion, con- tending that the Board is not empowered to grant such a protective order and that the Board is em- powered only under appropriate circumstances, and for good cause shown, to petition the United States district court for such an order. The General Counsel also contends that the Respondent has not shown "good cause" to warrant petitioning the court for a protective order. Without passing on the General Counsel's arguments, we deny the Re- spondent's motion, without prejudice to a subse- quent motion for appropriate relief. Our reasons for denying the motion follow. First, we do not believe that holding the con- tents of the motion to reopen confidential would be proper-or even possible--under the circum- stances of this case. Musa's affidavit appended to the motion has raised serious questions regarding not only the factual bases of the Board's decision in this case, but also the credibility of testimony taken at the hearing. Such questions can only be resolved through the hearing process. Second, we note that Garcia and Marquez are not charging parties. However, "[a] discriminatee who has not filed his own charge is not a party within the Board's defi- nition but . . . in a real sense has been regarded as a party in a long line of Board decisions." Unga Painting Co., 237 NLRB 1306, 1307 (1978). In rec- ognition of the strong interest of discriminatees in Board proceedings, the Board recognizes only lim- ited circumstances under which they can be pre- vented from hearing the testimony of other wit- nesses: Specifically, alleged discriminatees should be excluded only during that portion of the hear- ing when another of the General Counsel's or charging party's witnesses is testifying about events to which the discriminatees have testi- fied, or will or may testify, either in the case- in-chief or on rebuttal, unless, in the judgment of the Administrative Law Judge, there are special circumstances warranting the unre- stricted presence of discriminatees or total ex- clusion when not testifying. Ibid. (fn. omitted). Therefore, in view of the Board's policy afford- ing a discriminatee the right to hear testimony except under certain circumstances, and in light of the scanty and conclusory nature of the averments in the Respondent's memorandum and supporting affidavit on which the request for a protective order is based, we view any relief in the nature of a protective order foreclosing Garcia and Marquez from knowing of the contents of the motion to reopen as unwarranted at this time.2 Last, although we share our colleague's concern for the seriousness of the allegations now before us, we think it premature at this stage of the proceed- ings to send the record to the Department of Jus- tice. In our view, the better course is to await the judge's supplemental decision with its further find- ings of fact and credibility resolutions, and our own disposition of that decision, before we consid- er what possible future course, including the refer- ral of this case to the Justice Department, to pursue. IT IS ORDERED that the proceeding is remanded to Administrative Law Judge Elbert D. Gadsden for the purpose of holding a hearing to receive ad- ditional testimony from Raisa Musa Quinones and other appropriate evidence relating to the credibil- ity issues and other issues raised by Raisa Musa Quinones' December 15, 1987 affidavit.3 IT IS FURTHER ORDERED that, at the conclusion of the hearing, Judge Gadsden issue a supplemental decision containing findings of fact, credibility res- olutions, and conclusions of law. The supplemental decision shall be served on the parties, after which the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. IT IS FURTHER ORDERED that Respondent's motion for a protective order is denied without prejudice for the reasons stated above. 2 Our Order here, however, should not be construed as precluding the judge upon a motion at the hearing for deciding in his discretion to se- quester witnesses based on a showing that special circumstances exist warranting sequestration under Unga Painting, supra. 2 Member Johansen views as most serious any allegation that witnesses in Board proceedings are threatened in order to affect their testimony and/or that witnesses have lied under oath either in Board hearings or in affidavits presented to the Board. Accordingly , he would send the entire record in this proceeding to the Department of Justice for whatever action that agency may deem to be appropriate in light of all the circum- stances in this case.