Ampco Metal Division

National Labor Relations Board - Board Decisions

Jan 29, 1980

247 N.L.R.B. 660 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ampco Metal Division of Ampco-Pittsburgh Corpora-
tion and United Steelworkers of America, AFL-
CIO
Ampco Metal Division of Ampco-Pittsburgh Corpora-
tion, Employer-Petitioner, and Employees Mutual
Benefit Association. Cases 31--CA-8021, 31-RC-
4104, and 31-RM-610
January 29, 1980
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On December 21, 1978, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and Union-Petitioner
(United Steelworkers of America, AFL-CIO) filed an
answering brief to the exceptions and a supporting
brief.
On July 17, 1979, the Board ordered that the
proceeding be remanded to the Administrative Law
Judge for the purpose of reopening the record to
receive evidence improperly excluded but admissible
under Rule 609 of the Federal Rules of Evidence. The
Board also ordered that the Administrative Law Judge
issue a Supplemental Decision reconsidering the credi-
bility of Robert Powell in light of the evidence
adduced at the reopened hearing.
On October 31, 1979, the Administrative Law
Judge issued the attached Supplemental Decision,
which concludes, as did her original Decision, that the
testimony of Robert Powell should be credited.
Thereafter, Respondent filed exceptions and a sup-
porting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision and Supplemental Decision in light
of the exceptions and briefs and has decided to affirm
the rulings, findings,' and conclusions of the Adminis-
trative Law Judge,2 and to adopt her recommended
order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
247 NLRB No. 91
orders that the Respondent, Ampco Metal Division of
Ampco-Pittsburgh Corporation, Torrance, California,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order.
IT IS HEREBY FURTHER ORDERED that the election
held on June 2, 1978, be, and it hereby is, set aside,
and that a new election be held as directed below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. t is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings. However, in adopting the
Administrative Law Judge's Supplemental Decision affirming her previous
crediting of the testimony of employee Robert Powell, we do so on the ground
that the evidence produced by Respondent at the remand hearing revealed but
a single conviction of Powell occurring some 6 years before the original
hearing in this proceeding and concerning a type of misconduct which would
not necessarily support an inference that Powell would be prone to testify
dishonestly under oath. Consequently, the evidence adduced at the remand
hearing does not warrant any reversal of the Administrative Law Judge's
finding crediting Powell. In affirming the Administrative Law Judge on this
point, we do not rely, however, upon her speculation as to which drug was
involved in Powell's conviction or upon her discussion of drug use in this
society, for these matters are not relevant to the resolution of the credibility
finding here under consideration.
In its exceptions to the Supplemental Decision, Respondent contends that
the Administrative Law Judge should be disqualified because of bias and
prejudice, and that a hearing de nowo should be held before a different
administrative law judge. After a careful examination of the entire record, we
are satisfied that this contention is without merit.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This case was held before me in Los Angeles, California, on
November 2, 1978. The original charge in Case 31-CA-8021
was filed by United Steelworkers of America, AFL-CIO,
herein called the Steelworkers, and served on Ampco Metal
Division of Ampco-Pittsburgh Corporation, herein called
Respondent or the Employer, on May 15, 1978. A first
amended charge therein was filed by the Steelworkers and
served on Respondent on June 23, 1978. The complaint in
Case 31-CA-8021 which issued on June 28, 1978, alleges
that Respondent violated Section 8(a)(1) of the Act.
The petitions in Cases 31-RC-4104 and 31-RM-610 were
filed on April 3 and April 21, 1978. Pursuant to a
Stipulation for Certification Upon Consent Election, an
election by secret ballot was conducted on June 2, 1978,
which resulted in 17 ballots cast for Employees Mutual
Benefit Association, herein called EMBA, and 16 cast for
the Steelworkers, with one void ballot and two challenged
ballots, a sufficient number to affect the result of the
election. On June 7 and 9, 1978, the Steelworkers and the
Employer, respectively, filed timely objections to conduct
affecting the results of the election, copies of which were
duly served on the other parties to the election.
On August 18, 1978, the Acting Regional Director issued
and served on the parties a Report on Challenges and
660
AMPCO METAL DIVISION
Objections, Order consolidating cases, Order directing hear-
ing, and notice of hearing in which he recommended that the
challenges be overruled, that they challenged ballots be
opened and counted, and that a revised tally of ballots be
issued. He further recommended that the objections be
overruled except for that portion of the Steelworkers'
Objection 4, which alleges that an employee was unlawfully
interrogated by the Employer; and he determined that this
objection is related to, and involves the same evidence as, the
allegations in the complaint in Case 31-CA-802 1, and could
best be resolved by a hearing together with the issues raised
in the complaint.
On October 26, 1978, the Board issued a Decision and
Direction in which it adopted the recommendations of the
Acting Regional Director and referred the matter to the
Regional Director for the action set forth in his conclusions
and recommendation. Accordingly, the challenged ballots
were counted and the revised tally was 16 for the Steelwork-
ers and 19 for EMBA.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Pennsylvania corporation with an office
and place of business located in Torrance, California, is
engaged in the operation of a foundry. Respondent in the
course and conduct of its business operations annually
purchases and receives goods or services valued in excess of
S50,000 directly from suppliers located outside the State of
California.
The complaint alleges, the answer admits, and I find that
the Respondent is now, and has been at all times material
herein, an employer within the meaning of Section 2(6) and
(7) of the Act.
11. LABOR ORGANIZATION
The Steelworkers and EMBA each is now, and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Since the mid-1940's, Respondent's production and main-
tenance employees have been represented by EMBA, and
during that period Respondent and EMBA have been parties
to successive collective-bargaining agreements. During
March 1978' the Steelworkers were attempting to organize
unit employees. On about March 3, 1978, Respondent and
EMBA commenced negotiations for a new agreement. The
principal negotiators for Respondent were Louis Letizia,
manager of manufacturing at the Torrance plant, and Joe
Fagan. Fagan is in charge of Respondent's corporate
' All dates herein will be in 1978, unless otherwise indicated.
Letizia's offce is located in the main office, not in the plant. Cutting tools
are stored in Letizia's office so machine shop employees, including Powell,
industrial relations and is apparently headquartered some-
where other than the Torrance plant.
On March 30, Fagan met with the unit employees to
explain Respondent's last offer. Thereafter, the employees
voted not to ratify the proposed agreement. Later that
morning Robert Powell, a machine operator, went to
Letizia's office and requested that Fagan delay his departure.
Powell told Fagan that a number of the employees were
confused regarding the proposed contract. He said the
employees had voted against the proposed contract because
it had not been explained very well and they did not
understand it. He said they wanted some further discussion
before making a final decision. Fagan complied with this
request, and later that day the employees, by petition,
ratified the proposed contract. Powell signed the ratification
petition.
On April 3, the Steelworkers filed the petition in Case 31-
RC-4104 and a hearing in the representation matters was
scheduled for May 3. Powell was subpoenaed by the
Steelworkers to appear and testify at the hearing. Powell did
attend the hearing; however, the parties entered into a
Stipulation for Certification Upon Consent Election prior to
calling any witnesses. It is admitted by Alan W. Hinnrichs,
branch manager of Respondent's western division, that by
his actions in the hearing room, Powell clearly associated
himself with the Steelworkers' supporters. Hinnrichs admits
to considerable surprise at this since Respondent considered
Powell as being instrumental in securing the ratification of
the EMBA contract.
On May 4, EMBA held a meeting of unit employees on
Respondent's loading dock during which they discussed the
election agreement and the fact that both EMBA and the
Steelworkers would appear on the ballot. During the
meeting, Powell stated that the Steelworkers had tried
unsuccessfully to organize the employees for 30 years. He
said that this time they had succeeded in getting an election,
and this might be the employees' last opportunity to have a
union represent them.
Also on the morning of May 4, Letizia went into the
production area, asked Powell to come into his office, and
then accompanied Powell to the office.2 When they arrived,
Hinnrichs was present. According to Powell, Hinnrichs said
he wanted to talk to Powell because there seemed to be some
kind of misunderstanding, since Powell had convinced
Fagan to delay his departure on March 30 in an attempt to
secure favorable reconsideration of the EMBA contract
proposal and now it appeared that Powell was against it.
Hinnrichs asked what was wrong, if Powell was unhappy
about something.
According to Powell, he replied that he was not making
enough money; he was supposed to be in charge of the
machine shop and other machine shop employees were
making more money than he was. Hinnrichs denied that
anyone in the machine shop received higher wages than
Powell. Powell said, "Robert does." Letizia then consulted
some records and stated that Robert did not receive higher
wages than Powell. Hinnrichs said that Powell had started
regularly go into the office to pick up and return these tools. It is unusual for
Letizia to accompany an employee to his office. Normally, the loudspeaker
system is used to call an employee to the main office.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off as a laborer and that even though he had been employed
only a short time,' he was in the machine shop and had a
good trade and should be thankful that he was given this
opportunity. Powell said, "Yes, I know," and then said he
would remain neutral in the whole thing.
Powell further testified that Hinnrichs then asked wheth-
er, there was anything else wrong around the plant-why
would the employees want to abandon EMBA and bring in
another union? Powell said Letizia was talking about
retiring. Letizia said, "I'm not going to retire, I'll be here for
the next four or five years." Letizia then asked, "How did
you get involved with this union thing, anyway?" Powell
said he attended one meeting and the next thing he knew he
was in the middle of it. Powell then asked what was wrong
with the employees wanting the Steelworkers. Either Hinn-
richs or Letizia said they really did not want a strike; they
had talked to someone in Respondent's Pittsburgh office and
they definitely were not going to give the employees any
more money, so they would have no alternative but to strike.
According to Powell, he replied that the employees could
not strike because they did not make enough money; they
had no strike funds and no one would vote for a strike.
Hinnrichs or Letizia replied, "[t]hen the Union would just be
costing you more money because if the Union (Steelworkers)
was in then they would be taking more money out," and
asked, "[t]hen what would happen?" Powell said they would
work without a contract. Powell admits that at the beginning
of the meeting Hinnrichs said the purpose of the meeting
was not to sway Powell as to how to vote in the election or
what union to support.
Hinnrichs places this conversation on May 8. According
to him, between May 3 and 8, he and Letizia discussed their
surprise at seeing Powell with the Steelworkers' supporters.
Letizia mentioned that Powell had been influential in
obtaining the successful reconsideration of the proposed
EMBA contract, that Powell had mentioned some confusion
among the employees as to the proposal. Letizia further said
there had been some confusion or misunderstanding on
Powell's part as to wages and seniority. Powell said
something to the effect that he was paid less money than
another machine shop employee with less seniority. So to
clear this up, according to Hinnrichs, he suggested that they
talk to Powell. I do not credit Hinnrichs as to this asserted
reason for summoning Powell. I find it absolutely incredible
that if Powell, whom Respondent considered a key support-
er prior to May 3, expressed some erroneous and adverse
understanding as to his wage rate, Respondent did not, prior
to May 3, correct his misinformation. Also, I find it
incredible that if the purpose of the meeting was to correct
such misunderstanding, Hinnrichs and Letizia did not check
the wage rates prior to calling Letizia into the office.
Hinnrichs testified that, except for his saying hello, Letizia
started the conversation by saying that the meeting was to
try to correct some misunderstanding about wage rate and
seniority. Powell said he thought they were being unfair, as
he was being paid less money. Either Hinnrichs or Letizia
asked how he knew this. Powell said he had heard it from
other people. Letizia and Hinnrichs then consulted a
' Powell was employed on December 15, 1975, as a laborer. After 6 to 8
months he was transferred to the machine shop.
' Powell testified without contradiction that between May 15 and June I he
seniority list with wage rates which Letizia had in his desk
and told Powell that was incorrect-his wage rate was at
least equal to the highest paid person in the machine shop.
They told Powell that the EMBA contract for the first time
provided for automatic increases and that under that
contract Powell would receive wage increases every 3
months until he reached the maximum contract wage.
Powell, who appeared to be a little nervous, according to
Hinnrichs, said he was going to remain neutral during the
election campaign. He further said he had signed a Steel-
workers authorization card and the Steelworkers had sub-
poenaed him to appear at the representation hearing.
Hennrichs said the meeting was not called with any
intentions of influencing him as far as his vote either for
EMBA or the Steelworkers was concerned, but that it was
strictly a matter of straightening out the confusion as to
wage rates and seniority. Powell again said he was going to
remain. neutral. Hinnrichs further testified that at some
point, Powell said there was a rumor that Letizia was going
to retire. Letizia said he had no intentions of retiring and he
did not know where the rumor started. On cross-examina-
tion, Hinnrichs admitted t-at following the discussion as to
wages, he asked Powell if there was anything else they could
help him with. He also admitted that he mentioned that
Powell had caused Fagan to delay his departure on March
30 so that he could speak again to employees regarding the
proposed EMBA contract. In response to a leading question
in this regard, Hinnrichs testified, "and so I did ask him,
seeing that he was so involved at that time. It surprised me
to see him at the hearing on May 3." Hinnrichs denies that
he asked Powell why he changed his mind about supporting
the EMBA contract or how he got mixed up with the Union.
He does not deny that Letizia asked these questions. Letizia
did not testify. Respondent offered no explanation as to why
Letizia was not called to testify.
To the extent that their testimony conflicts, I credit
Powell. Powell impressed me as an honest, reliable witness
who was endeavoring to be truthful. Hinnrichs, on the other
hand, betrayed a tendency to slant his testimony in a manner
favorable to Respondent. I also note that Letizia did not
testify and his failure to do so was not explained. While the
failure to call a corroborating witness does not always
support an inference that the witness's testimony would be
adverse, in the circumstances herein, where Respondent has
expressed a preference for continuing to deal with EMBA'
and the outcome of the objections might well depend upon
the credibility resolutions as to a single conversation, I find
that the failure to adduce testimony from Letizia warrants
an inference that if he had testified, his testimony would
have been unfavorable to Respondent.
Powell creditably testified that about 3 days after his
conversation with Letizia and Hinnrichs, he attended a
Steelworkers meeting along with about 16 other unit
employees. During this meeting a Steelworkers representa-
tive said that some of the employees had seen Powell going
into Letizia's office, that there was a rumor that Powell had
"sold out" and he wanted to know what went on. Powell
then gave an account in the meeting of his conversation with
received approximately three letters from Respondent expressing a preference
for EMBA as the collective-bargaining representative of its employees.
662
Letizia and Hinnrichs which corresponded to his testimony
herein.
IV. CONCLUSIONS
The General Counsel and the Steelworkers contend that
the May 4 conversation constitutes coercive interrogation
violative of Section 8(a)(1) of the Act. The Steelworkers
further contend that this interrogation warrants setting aside
the election.
Respondent argues that even if Powell is credited, the
statements made by Letizia were permissible under the Act.
Respondent further argues that even assuming arguendo that
certain statements were violative of Section 8(a)(l), it was a
single, isolated incident of interrogation of one employee
which occurred so far in advance of the election that it could
not possibly have affected the results of the election. Also,
contends Respondent, the only reason other employees knew
of the conversation was because the Steelworkers representa-
tive inquired about it at a Steelworkers meeting for unit
employees.
Respondent also argues that it is significant that about 16
employees attended that meeting and 16 employees cast
ballots for the Steelworkers. Finally, Respondent argues that
Powell's continued support of the Steelworkers indicates
that he was unaffected by this conversation and that his
reaction had the effect of negating any impression among
other employees that the meeting had been coercive.
It is well established that the determination of a violation
of Section 8(a)(l) of the Act turns upon the objective test of
whether such conduct tends to interfere with the free
exercise of rights protected by Section 7 of the Act, The
Cooper Thermometer Company, 154 NLRB 502, 503, fn. 2
(1965), not on an employee's subjective reaction to such
conduct. Here Respondent called in Powell, an employee
known to be a Steelworkers supporter and known, or
believed, to be influential with other employees and ques-
tioned him as to his and fellow employees' reasons for
supporting the Steelworkers. Powell was further asked how
he became involved with the Steelworkers.
These questions were asked in the context of Respondent's
expressed preference for continuing to deal with EMBA and
statements by Hinnrichs and Letizia that the employees
would have no alternative but to strike since Respondent
was not going to give them any more money. Contrary to
Respondent, I find it immaterial that Hinnrichs stated that
the purpose of the meeting was not to influence Powell's
vote. Such a denial is mere empty words where statements
were made which can only be interpreted as arguments
against Steelworkers representation.
Accordingly, I find that Hinnrichs' and Letizia's interro-
gation of Powell was violative of Section 8(a)( 1) of the Act. I
further find that such conduct which was reported to 16 out
of approximately 36 unit employees also interfered with the
employees' exercise of a free and untrammeled choice in the
election held on June 2, 1978. Accordingly, I shall recom-
' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules
and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of tht ules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
AMPCO METAL DIVISION
mend that the said election be set aside and that a new
election be held at such time as the Regional Director deems
appropriate.
CONCUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Steelworkers and EMBA each is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By coercively interrogating an employee as to his union
activities and desires, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record and pursuant
to Section 10(c) of the Act, I hereby recommend the
following:
ORDER'
The Respondent, Ampco Metal Division of Ampco-Pitts-
burgh Corporation, Torrance, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees as to their union
membership, activities, and desires.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Torrance, California, facility copies of the
attached notice marked "Appendix."' Copies of said notice,
on forms provided by the Regional Director for Region 31,
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent 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 customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 31, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that Objection 4 be
sustained insofar as it alleges the unlawful interrogation of
- In the event that 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
National 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."
663
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee. Accordingly, I recommend that the election
held on June 2, 1978, be set aside and a second election by
secret ballot be conducted at such time and manner as the
Regional Director deems appropriate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations Act
and has ordered us to post this notice, and we intend to carry
out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these rights.
More specifically,
WE WILL NOT coercively interrogate employees as to
their union membership activities or desires.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights as set forth above, which are guaranteed by
the National Labor Relations Act.
AMPCO METAL DIVISION OF AMPCO-PITTS-
BURGH CORPORATION
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge: On
December 21, 1978, I issued a Decision in this matter
finding that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act and that
such conduct was sufficient to require the setting aside of the
election held on June 2, 1978. On July 17, 1979, the Board
I Apparently, the essence of this conclusion is that I erroneously exercised
discretion in making this ruling inasmuch as the witness involved was not a
defendant in a criminal proceeding. In excluding this evidence, it had
appeared to me that in representation matters there exists a substantial
possibility of abuse by intruding into these proceedings essentially irrelevant
personal information not so much for credibility in the proceeding, but for its
impact during a possible reelection campaign. Thus, notwithstanding that rule
609 permits exclusion only as to defendants, presumably only in criminal
matters, I concluded that the Board's Rules and Regulations, Sec. 102.39
would permit some discretion on the part of the administrative law judge
based on a balancing of the possible aid of such evidence to credibility
resolution considering the type (I note that the possession of drugs was the
only conviction of which Respondent had some manner of proof and that, in
previous practice, and perhaps still, it was considered improper for counsel to
ordered that the record in this proceeding be reopened and
that a further hearing be held to receive improperly excluded
evidence, and remanded the proceeding to the Regional
Director for Region 31 for the purpose of arranging such
further hearing. Accordingly, a further hearing was held
before me on September 11II, 1979.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
In my original decision herein I found that Respondent
through Louis Letizia and Alan W. Hennrichs interrogated
employee Robert Powell in violation of Section 8(a)(1) of the
Act, and that such interrogation constituted objectionable
preelection conduct. These findings were based primarily
upon the credited testimony of Powell.
Thereafter, Respondent filed exceptions to this Decision
contending, inter alia, that Respondent had been erroneous-
ly refused the opportunity to cross-examine Powell about
possible criminal convictions falling within the scope of rule
609 of the Federal Rules of Evidence and thus admissible for
purposes of impeachment. The Board concluded that by
sustaining objections to this line of questioning and rejecting
Respondent's offer of proof, I failed to comply with rule 609'
and that such failure was prejudicial error.
During the reopened hearing, Powell testified that in 1972
he pleaded guilty to a misdemeanor charge of drug posses-
sion upon the advice of his attorney that if he pleaded guilty,
the charge would be reduced to a misdemeanor. He was
convicted, placed on 2 years' probation, and fined $200. He
does not know whether he was convicted of a misdemeanor
or a felony, but was under the impression that he was
convicted of a misdemeanor offense.
Respondent did not introduce into evidence the record of
Powell's conviction. Respondent argues that I erred in my
ruling denying Respondent's motion for a continuance to
obtain such record.2 However, the only reason Respondent
offered for its failure to have previously obtained the record
was that the record was not in Los Angeles but rather was in
Norwalk, a city 16 miles from Los Angeles. Inasmuch as
Respondent first raised the issue of Powell's prior conviction
at the original hearing herein held on November 2, 1978, the
Board's order remanding this matter issued on July 17,
1979,' and the notice of hearing issued on July 27, I conclude
that Respondent had ample opportunity prior to the
indulge in "fishing expeditions" where counsel had no proof of the witness's
prior convictions) and remoteness of the offense, against the possibility of
discouraging a rehabilitated employee from active support of the Union
during an election campaign or from volunteering information as to
Respondent's preelection conduct because of fear of being required to testify
and thus run the risk of having prior convictions disclosed. The critical issue is
not the possible damage to the witness's reputation, a consideration rejected
by Congress, but rather is the possible impact of the admission of such
evidence on the election process as weighed against its significance in the
resolution of critical issues. It appears, however, from the Board's order that
such conclusion was erroneous and the reservation in Sec. 102.39 is not
intended to cover such situations.
' I have treated this argument as a motion for reconsideration.
' Unless otherwise indicated, all dates hereinafter are in 1979.
664
AMPCO METAL DIVISION
September 11 hearing herein to obtain such record and any
further delay in this proceeding is unwarranted. According-
ly, I adhere to my original ruling.
During the course of the further hearing, I denied
Respondent's motion that I disqualify myself from further
participation in these proceedings. In its brief, Respondent
requests a reconsideration of this ruling. In support of this
request, Respondent argues that my "flagrant disregard" of
rule 609, the sustaining of certain bjections to questions
posed by counsel for Respondent and the overruling of
certain objection made by counsel for Respondent, "the
internal inconsistencies, the drawing of unwarranted infer-
ences [and] the errors" in my Decision evidence a "predeter-
mined partiality towards Mr. Powell and/or the Steelwork-
ers, plus a hostile attitude toward Respondent."
Respondent further argues that "[e]ven assuming arguen-
do that [my] actions did not constitute actual bias or
prejudice, they are sufficiently suspect and questionable so
that disqualification is warranted to avoid even the appear-
ance of impropriety. See Filmation Associates, Inc., 227
NLRB 1721 (1977); Centerfor United Labor Action (Sibley,
Lindsay and Curr Company), 209 NLRB 814 (1974);
Indianapolis Glove Co., 88 NLRB 986 (1950); [and that] only
by resort to a hearing de novo before a different Administra-
tive Law Judge can the integrity of this administrative
proceeding be retained, and all parties afforded a fair
hearing." I have carefully considered Respondent's argu-
ment and the cases cited in Respondent's brief. However, I
find them unpersuasive and I continue to adhere to my
original ruling.
As to the impact of Powell's prior conviction on his
credibility, Charging Party argues that the conviction is not
proper evidence to be used for impeachment purposes under
rule 609 inasmuch as no evidence was adduced to establish
that he was convicted of a crime punishable by death or
imprisonment in excess of I year under the law under which
he was convicted. Although this argument is appealing,' the
Order of remand leaves me no option since it specifically
provides:
IT IS FURTHER ORDERED that upon conclusion of
such further hearing, the Administrative Law Judge
shall reconsider the credibility of Robert Powell in light
of the evidence adduced at the reopened hearing and
prepare and serve upon the parties a Supplemental
Decision containing findings of facts upon the evidence
received pursuant to this order and such conclusions of
' The record contains no information as to what section of the California
Health and Safety Code was involved in Powell's conviction. There is more
than one section defining a penalty for the illegal possession of drugs in the
California Uniform Controlled Substances Act; i.e., Health and Safety Code,
sec. 11357 (formerly 11530) added by statute in 1972 which pertains to
marijuana (a 1972 amendment also eliminated marijuana as a "narcotic" and
did not classify it as a dangerous drug); and Secs. 11350 and 11377, also added
by statute in 1972, which pertain to certain other named drugs. Sec. 11350
provides for punishment by imprisonment in state prison of not less than 2
years. The other two sections provide for alternative punishment of imprison-
ment in the county jail for a period of not more than year or the state prison
for a period of not less than I year. Sec. 17 of the California penal code
provides that a felony is a crime punishable by death or imprisonment in state
prison and every other crime is a misdemeanor. It further provides that when
a crime is punishable, in the discretion of the court, by imprisonment in state
prison or by fine or imprisonment in the county jail, it is a misdemeanor for all
purposes under certain circumstances-including after a judgment imposing
punishment other than imprisonment in state prison, or when the court grants
law and recommendations that she may deem appropri-
ate as a consequence of this further proceeding ....
I have, therefore, carefully and fully reconsidered the record
of the original hearing, the original briefs of the parties, and
my original decision herein in the light of the evidence
adduced at the reopened hearing and the arguments and
post-hearing briefs of the parties.
The rationale for giving credibility consideration to
convictions for crimes which do not involve deceit, untruth-
fulness, or falsification appears to be based upon the
assumptions that (I) a person with a criminal past has a bad
general character and a propensity toward evil or, at the
very least, has demonstrated a willingness to engage in
conduct in disregard of accepted patterns, and (2) such
persons are the type who would disregard the obligation to
testify truthfully. See Weinstein's Evidence, 609[02].
Certain crimes, such as acts of sudden violence, have been
considered to have little correlation to one's credibility,
particularly as to matters not of the same nature.
Although not relevant, in the circumstances herein, to
admissibility, the question of whether the prior conviction
was for a crime involving dishonesty is a legitimate consider-
ation in determining the weight to be given. Other factors to
be considered are whether the offense involved demonstrates
a willingness to engage in conduct in flagrant disregard of
accepted patterns of conduct, whether the nature of the
offense can be considered as indicative of a bad general
character, and the remoteness in time of the conviction.
Here Respondent was convicted of the illegal possession
of drugs, a crime which does not involve dishonesty.' The
record does not indicate what drug was involved. Since there
is a wide variance in the acceptability of drug use, dependent
upon the type of drug involved, I conclude that, in the
absence of evidence to the contrary, I must consider Powell's
conviction as if it involved the drug whose use, or abuse, is
most accepted by society. Accordingly, my discussion below
is based on this assumption.
Although many of us have negative notions and prejudices
as to drug convictions, drug abuse, involving drugs per-
ceived by large segments of the populace as "not danger-
ous," is rampant in our society. It extends through all strata
of society from the White House down, and touches many of
our most respected professions, including the medical
profession. There seems to be little correlation between the
offense and the general character of the offender or the
offender's willingness to abide by basic moral standards, or
probation without imposition of sentence and at the time of granting
probation, or thereafter declares the offense to be a misdemeanor, or when the
prosecuting attorney files in court a complaint specifying that the offense is a
misdemeanor. Sec. 11356, to which Respondent refers, apparently purports
only to define the use of the terms "felony offense" or "offense punishable as a
felony" for purposes of the enhancement of punishment based on prior
convictions, not to supersede sec. 17 of the Penal Code. See People v. Garnett.
107 Cal. Rptr. 197. 31 CA. 3d 255 (1973), Tracy v. Municipal Court for
Glendale, 150 Cal. Rptr. 785. In these circumstances, the evidence seems to be
insufficient to establish that Powell's prior conviction was for a crime
punishable by death or imprisonment in excess of year. Accordingly, the
evidence seems insufficient to bring Powell's prior conviction within the
purview of rule 609 and there appears to be some merit in Charging Party's
argument that, even though admitted, the evidence of Powell's prior
conviction should not be considered in determining his credibility
' The legislative history indicates that drug convictions are not crimes
involving dishonesty. See comments of Representative Hogan 120 Cong. Rec.
H 551-553 (daily ed.), February 6, 1974.
665
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to respect the obligation to testify truthfully. While it may be
an overstatement to say that drug abuse is acceptable
conduct, nevertheless the illegal use of certain drugs,
particularly marijuana, is recognized conduct. There has
been much controversy as to whether the use and possession
of drugs, especially marijuana, should be considered a crime
and, in the case of marijuana, there has been a decriminaliza-
tion of the offense or a practice of failure to prosecute in
many jurisdictions. Undoubtedly, one of the significant
factors in this approach to certain types of drug abuse has
been the recognition that such drug abusers are often not
what society considers as the "criminal type," and often are
persons who make valuable contributions to society. Ac-
cordingly, I cannot conclude, based on his conviction 7 years
ago, that Powell has a bad general character and a
propensity toward evil, or that his conviction indicates a
willingness to ignore the basic moral standards of our society
or a willingness to disregard the obligation to testify
truthfully.
1I. CONCLUSION
In all of the circumstances, including the rationale for my
credibility findings set forth in my original decision, the
nature of Powell's prior conviction and its impact on
credibility as set forth above, and the fact that the conviction
was 7 or 8 years ago, adhere to my previous determination
that Powell's testimony should be, and it is, credited.
Accordingly, I make no change in the conclusions of law
and recommendations set forth in my original Decision.
666