Gyrodyne Co. of America, Inc.

National Labor Relations Board - Board Decisions

Oct 8, 1970

185 N.L.R.B. 934 (N.L.R.B. 1970)

934 GYRODYNE CO OF AMERICA, INC
Gyrodyne Company of America, Inc. and Internation-
al Union, United Automobile , Aerospace & Agri-
cultural Implement Workers of America, UAW.
Case 29-CA-57
October 8, 1970
SUPPLEMENTAL DECISION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On March 12, 1968, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding in which it adopted the findings,
conclusions, and recommendations of Trial Examiner
Arthur E. Reyman as contained in his Trial Examin-
er's Decision of January 21, 1966. The Board therein
accepted the Trial Examiner's credibility resolutions,
found that certain individuals with knowledge of
employee union activity were not supervisors within
the meaning of Section 2(11) of the National Labor
Relations Act, as amended, and concluded that
Respondent had not engaged in conduct in violation
of Section 8(a)(1) and (3) of the Act as alleged.
Subsequently, the Charging Party filed with the United
States Court of Appeals for the District of Columbia
Circuit a petition for review of the Board's Order
dismissing the complaint.
Thereafter, on November 5, 1969, the court handed
down its opinion' in which it stated that certain
of Respondent's records, subpenaed by the General
Counsel but not produced by Respondent, appear
clearly relevant to the issues in the case. The court
noted that while the Trial Examiner had originally
stated that he would draw adverse inferences from
Respondent's failure to produce, he later stated that
"I make nothing of the fact that the Company refused
to respond to the subpoena." The court was of the
opinion that if adverse inferences from Respondent's
failure to produce were not to be drawn, the failure
to draw such adverse inferences should be explained.
Accordingly, the court remanded this case to the
Board to either (1) explain the failure to draw the
requested inferences, (2) draw the inferences and
explain the consequences, or (3) require production
of the records.
On February 2, 1970, the Board issued a notice
to show cause why it should not draw an adverse
inference from the Respondent's failure to produce
the subpoenaed records and, if it should draw such
' 170 NLRB No 25
'419F2d686
adverse inference, why it should not reverse its original
decision dismissing the complaint. Thereafter, the
General Counsel, the Respondent, and the Charging
Party filed memoranda in response to the notice
to show cause, and the Charging Party filed a brief
in reply to the Respondent's response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board, having reexamined the Decision and
Order, the court's Decision, as well as the entire
record including the parties' responses to the Notice
to Show Cause, adheres to its original Decision and
Order herein. In doing so, we conclude that under
the circumstances noted hereafter it was unnecessary
to draw adverse inferences and that the failure to
draw the requested inferences was not prejudicial.
We agree with the court that the subpenaed mate-
rial appears clearly relevant. Usually, the failure to
produce such material gives rise to an inference that
it would be unfavorable or adverse to the party failing
to produce it, and also has persuasive value in dis-
counting the credibility of the party failing to produce.
However, the failure to produce is a fact to be consid-
ered in view of all of the circumstances of the case.
Had Respondent's oral testimony been unreliable or
untrustworthy, the subpenaed materials would have
assumed more importance.'
The issue of the subpenaed materials was, to say
the least, vigorously litigated. When the issue of the
relevant subpenaed records first arose, the General
Counsel questioned the Respondent's assistant person-
nel manager in general terms about their existence
and whereabouts. The record reveals that some of
the subpenaed records were available and in the hear-
ing room After the Trial Examiner suggested that
the General Counsel call for the production of the
records, if relevant, the matter was temporarily
dropped. Later, both the General Counsel and the
Trial Examiner asked Respondent's witness to produce
the payroll record for the "blade department" pur-
suant to item 1 of the subpena. However, item 1
of the subpena does not mention the "blade depart-
ment," but merely requests payroll and personnel
records for 75 listed employees and supervisors. When
the Respondent's attorney attempted to call this dis-
crepancy to the attention of the Trial Examiner,'
' Mid-States Sportswear, Inc., 168 NLRB No 74, Crow Gravel Co,
168 NLRB No 141
' During the time the Trial Examiner was calling for production
of the records , he changed the request to include all the material subpenacd
in item 1, but the Respondent 's attorney still believed that the request
was only for the "blade department "
185 NLRB No. 133
GYRODYNE CO OF AMERICA, INC. 935
the Trial Examiner noted that production of the
records had been refused, that he would draw his
own inferences therefrom. Later, when the Charging
Party called for the personnel records of a specific
individual, Respondent produced the file, stated that
it would not allow a "free-for-all inspection" by the
oppostition, but allowed the Trial Examiner to inspect
it. After examining the file, the Trial Examiner stated
that he thought "that the anticipation of finding
things in here which you hope to find is unwarranted.
..." The Trial Examiner suggested that the Charging
Party and General Counsel question from a summary
blue card form in the personnel files of each discrimi-
natee, stating that he was reluctant to "just turn
the file over for a general fishing expedition for whatev-
er may appear in here," and further advising that
the proper forum for enforcement of the subpoena
was in the District Court. Thereafter, the Charging
Party asked for the personnel folder of each alleged
discriminatee, and the Respondent offered the "blue
card" but refused to furnish any other portions of
the personnel records. Both the General Counsel and
the Charging Party rejected the offer of the blue
cards.
As the court noted, payroll and personnel records
were relevant in seeking to show reasons for the
discharges. However, the General Counsel's Exhibit
11 compiled from the records of the Respondent,
substantially complied with the General Counsel's
request for the Company's reasons for discharge.
That exhibit on its face showed termination and
reasons therefor for all terminations taking place
between January 1, 1964, through October 31, 1964
Moreover, it is clear from credited testimony that the
reasons for terminations, as stated on that exhibit,
were compiled from company and personnel records.
In addition, Respondent offered to supply the
summary blue card form from all personnel records
from which the General Counsel or the Charging
Party could have begun interrogation of
Respondent's witnesses had they desired to take
advantage of the offer. In this regard, the blue card
summary for each employee could have been
compared as to job description, rates of pay,
supervisory authority, and other matters, and
responsibility for failure to do so cannot now be
attributed to Respondent. Finally, no one has
suggested exactly what inference can be reasonably
drawn from Respondent's failure to supply the
complete personnel folder,particularly in view of the
fact that the Employer's reasons for discharge are
stated on the General Counsel's Exhibit 11. Nor have
the General Counsel or Charging Party indicated
what material would be relevant within those files.
Consequently, we are unable to infer that the
personnel files will establish that the discharges were
because of union activity, the infarence apparently
implied by the Union.
At one point in the hearing, the General Counsel
asked Respondent's Assistant Personnel Manager if
the Company maintained manuals and charts with
regards to lines of authority, but withdrew the question
before it was answered. When asked by the Charging
Party, the Respondent produced an organizational
chart, which was identified as an exhibit of the Charg-
ing Party. The exhibit was further identified as a
current chart covering the structure of the "fabrica-
tion" department, which apparently included many
of the departments in which the alleged discrimmatees
involved herein worked. It was explained that the
chart was current and that only a current chart
was maintained. The Charging Party did not introduce
the chart in evidence nor elicit any meaningful testimo-
ny regarding supervisory status from it. Rather, after
having an opportunity to examine the chart, the
Charging Party refrained from questioning about the
chart. Still, the Charging Party requests us to infer
that the Company's leadmen were supervisors or
agents of the Company within the meaning of the
Act, because the Company refused to furnish requested
documents. From the record, and under the circum-
stances, we believe the Company substantially com-
plied with the Charging Party's request to this aspect
of the General Counsel's subpena. There was no
refusal to furnish the chart the Charging Party identi-
fied, but failed to offer, as an exhibit.
Regarding a list of employees rehired, the record
shows and the testimony was credited, that none
of the laid off or discharged employees were subse-
quently rehired. There was also credited testimony
that further terminations had taken place subsequent
to the alleged discriminatory discharges which were
not even alleged as discriminatory. And the record
discloses that the total number of employees dropped
substantially from the time of the alleged discriminato-
ry layoffs until the time of the hearing.
Although it is true that the Board generally views
suspiciously a failure to produce relevant documents
and material witnesses, and will draw adverse inferenc-
es from such failure in appropriate circumstances,
we deem it unwarranted to draw those inferences
here where the Employer's witnesses are credited,
where the General Counsel and the Charging Party
refused some documents produced, and where the
Employer did produce many of the documents request-
ed. Indeed, at one point, the General Counsel asked
if the Respondent had a list of employees transferred,
and on obtaining an affirmative response, the matter
was dropped.
Even assuming, arguendo, adverse inferences were
to be drawn from the Respondent's failure to produce,
we nevertheless do not believe that such inferences
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as could be drawn would produce a sufficient evidenti-
ary base for reversing our Decision herein, particularly
in view of the Trial Examiner's credibility findings
which were based on evidence subsequently adduced
by the Employer.
Moreover, the General Counsel had adequate oppor-
tunity to seek enforcement of his subpena in court.
He did not do so, but proceeded with the presentation
of his case, often through secondary evidence even
after being advised on numerous occasions that the
forum for enforcement was with the courts. Our
determination here does not mean that we condone
all the actions of the Respondent or that we will
not in other circumstances draw adverse inferences
from failure to produce relevant materials subject
to a lawful subpoena. We do conclude that under
the circumstances of this case, there was no failure
to draw adverse inferences which was prejudicial to
any party. We adhere to our original Decision and
Order.