Hydro Conduit Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1293 (N.L.R.B. 1985)

HYDRO CONDUIT CORP
Hydro Conduit Corporation and Chauffeurs, Team-
sters and Helpers Local Union #492 (Ind.); and
Laborers' International Union of North Amer-
ica, Local #16, AFL-CIO. Case 28-CA-5115
29 March 1985
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 28 September 1984 Administrative Law
Judge Frederick C. Herzog issued the attached de-
cision. The Respondent and the General Counsel
filed exceptions, supporting briefs, and answering
briefs.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions 3
ORDER
The National Labor Relations Board reaffirms its
Decision and Order of 10 May 1979 in this pro-
ceeding, reported at 242 NLRB 171.
i The General Counsel excepted to the judge's attachment to his deci-
sion of Appendix B, consisting of the judge's 12 January 1983 "Order
Denying Petition to Revoke or Quash Subpoena " The General Counsel
and the Respondent contend that Appendix B is inaccurate or incomplete
because it does not include their respective requests for special permis-
sion to appeal the judge's Order, or the Board's Order granting those re-
quests in part As discussed in sec III,D, In 5 of his decision, the contro-
versy underlying the judge's Order is now moot Accordingly, we deny
the General Counsel's and the Respondent's requests to incorporate the
above-mentioned documents in our decision
2 The Respondent has excepted to some of the judge's credibility find-
ings In addition, the Respondent moved the Board to reject the judge's
credibility resolutions on the grounds that the judge misstated or ignored
issues and record evidence, and was biased and prejudiced in his state-
ments during the hearing and in his findings in his decision The Board's
established policy is not to overrule an administrative law judge's credi-
bility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect Standard Dry Wall Products,
91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have careful-
ly examined the record and find no basis for reversing the findings Nor
do we find evidence that the judge's statements during the course of the
hearing or his subsequent findings on the evidence were the result of bias
or prejudice
At fn 10 of his decision, the judge found that both McGee and Finley
were in layoff status with the Respondent at the time of the hearing,
whereas, the record shows that Finley was working regularly for the Re-
spondent This error is insufficient to affect our determinations herein
We agree that the Unions did not engage in objectionable conduct
through the statements of Huge McGee In so doing, we note that
McGee's statements to other employees, at most, constituted misrepresen-
tations concerning the Board or its processes, and that there is no evi-
dence that forgery was involved Accordingly, we find that McGee's
conduct was not objectionable Riveredge Hospital, 264 NLRB 1094
(1982), Midland National Life Insurance Co, 263 NLRB 127 (1982)
a In his decision, the judge provided a recommended Order and notice
to employees which parallels the Board's original Decision and Order re-
ported at 242 NLRB 171 We instead shall reaffirm the Board's prior De-
cision and Order in this proceeding
DECISION
STATEMENT OF THE CASE
1293
FREDERICK C HERZOG, Administrative Law Judge.
On November 16, 1978, an unfair labor practice charge
was filed against Hydro Conduit Corporation (Respond-
ent) by Laborers' International Union of North America,
Local #16, AFL-CIO and Chauffeurs, Teamsters and
Helpers Local Union #492 (Ind) (the Unions) alleging
that the Respondent had violated Section 8(a)(5) and (1)
of the National Labor Relations Act by refusing to bar-
gain in good faith with respects to the wages, hours, and
other terms and conditions of employment of employees
in a described unit On December 15, 1978, the General
Counsel of the National Labor Relations Board, on
behalf of the Board by the Acting Regional Director for
Region 28, issued a complaint and notice of hearing al-
leging, generally, that about April 27, 1978, a majority of
employees of the Respondent in a unit appropriate for
collective bargaining had designated and selected the
Unions jointly as their representative for the purposes of
collective bargaining with the Respondent, and that
about September 25, 1978, the Board certified the Unions
as the exclusive collective-bargaining representatives of
the employees, but that since about October 2, 1978, the
Respondent has refused and failed to bargain collectively
in good faith with the Unions, all in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act)
This matter was heard before me at Albuquerque,
New Mexico, on November 30, December 1-3, and 20,
1982, and March 1-4, 1983. All parties were afforded full
opportunity to appear, to introduce evidence, to examine
and cross-examine witnesses, and to file briefs. Based on
the entire record, on the briefs that were filed and on my
observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has
been, a corporation duly existing under and by virtue of
the laws of the State of Delaware , with its principal
place of business in Albuquerque, New Mexico , where it
is engaged in the manufacture , sale, and distribution of
pipe and related products During the 12 months immedi-
ately preceeding the issuance of the complaint herein,
which period is representative of its operations at all
times material herein, Respondent , in the course and con-
duct of its business operations , purchased goods and ma-
terials valued in excess of $50,000, which were transport-
ed in interstate commerce and delivered to its place of
business in New Mexico directly from States other than
New Mexico.
I find that Respondent is, and at all times material
herein has been , an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act
274 NLRB No. 190
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE LABOR ORGANIZATIONS INVOLVED
Laborers' International Union of North America,
Local #16, AFL-CIO and Chauffeurs, Teamsters and
Helpers Local Union #392 (Ind) are, and at all times ma-
terial herein have been, labor organizations within the
meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On February 2, 1979, the General Counsel moved the
Board for its Order Granting Summary Judgment on the
complaint mentioned above Respondent, through coun-
sel,' filed a response to the Motion for Summary Judg-
ment On February 15, 1979, the Board issued its order
transferring the proceeding to itself and its Notice to
Show Cause why the Motion for Summary Judgment
should not be granted. Finally, on May 10, 1979, the
Board issued a Decision and Order2 in this case granting
the General Counsel's Motion for Summary Judgment
and finding that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the National Labor Relations
Act by refusing to bargain with the Unions.
Thereafter the Respondent petitioned for review
before the United States Circuit Court of Appeals for the
Tenth Circuit, and the Board cross-petitioned for en-
forcement of its Order. On February 3, 1981, the court
denied enforcement of the Board's Order and remanded
the case to the Board3 for a hearing on certain issues
raised by a motion for reconsideration which had been
filed by the Respondent.
On September 2, 1982, the Board accepted the remand
in this case and ordered that a hearing be held before an
administrative law judge and, toward that end, remanded
the case to the Regional Director for Region 28 for the
purpose of arranging such a hearing and issuing notice
thereof.
In due course, as set forth above, the matter came
before me for hearing in Albuquerque, New Mexico.
B. The Underlying Representation Case
About March 3, 1978, the Unions filed a petition for
representation in Case 28-RC-3456, seeking certification
as the collective-bargaining representative of the employ-
ees within a described unit. Pursuant to a Stipulation for
Certification Upon Consent Election, an election was
thereafter conducted on April 27, 1978, among the af-
fected employees. The tally of ballots served on all par-
i At that time Respondent was represented by the firm of Pickering &
Bingham The pleading was signed by Wayne E Bingham
2 242 NLRB 171 (1979)
3 On the same day that it remanded Case 28-CA-5115, mentioned
above , to the Board for a hearing, the United States Circuit Court of
Appeal for the Tenth Circuit issued its order enforcing the Board 's Order
in another case in which the Board complained of unfair labor practices
against the Respondent This involved Case 28-CA-4771, and is not to be
confused with the instant matter See 240 NLRB 48 (1979) However, the
events concerning the Regional Director's administrative investigation
and efforts to dispose of the allegations by way of settlement are, as will
be shown at a later point herein , claimed to have a bearing upon the
proper result in this case
ties at the conclusion of the balloting showed that of ap-
proximately 105 eligible voters, 53 cast votes for the
Joint Petitioner and 37 cast votes against the participat-
ing labor organization, with 4 challenged ballots, and no
void ballots.
Thereafter, on May 4, 1978, the Respondent filed
timely objections to conduct allegedly affecting the
result of the election On June 2, 1978, the Regional Di-
rector for Region 28 issued his Report and Recommen-
dation on Objections to Conduct Affecting Results of the
Election, and recommended that the Board overrule the
Respondent's objections in their entirety and that a certi-
fication of representative issue. The report and recom-
mendation were based on an administrative investigation
conducted by the Regional Director for Region 28
which, among other things (according to the statements
contained within the Regional Director's Report) in-
volved interviewing and, presumably, taking evidence
from witnesses presented by the Respondent.
On June 22, 1978, the Respondent filed exceptions to
the Regional Director's report and recommendations
On September 25, 1978, the Board issued its Decision
and Certification of Representative to the Unions as the
exclusive joint representative of all the employees in the
following appropriate unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment-
All production and maintenance employees includ-
ing truck drivers employed by the [Respondent] at
its Albuquerque, New Mexico operations; excluding
all office clerical employees, guards, watchmen and
supervisors as defined by the Act.
On October 17, 1978, the Respondent filed with the
Board a motion for reconsideration and reopening of the
record concerning the Board's Certification of Repre-
sentative in Case 28-RC-3456.
On November 16, 1978, the Board issued its Order in
Case 28-RC-3456 denying the Respondent's motion for
reopening and reconsideration noting that "the evidence
sought to be adduced by the [Respondent] has not been
shown to have been previously unavailable with the ex-
ercise of due diligence."
As noted above, the facts surrounding the preelection
campaign and postelection investigation of Case 28-RC-
3456 led to the filing of the instant charge, the issuance
of the complaint herein, a Motion for Summary Judg-
ment, the granting of the motion by the Board, and, ulti-
mately, denial of enforcement by the Circuit Court of
Appeals for the Tenth Circuit In substance, the Re-
spondent herein alleges that the Regional Director and
the Board incorrectly certified the Unions as the collec-
tive-bargaining representative of the affected employees,
and that, by virtue thereof, it follows that the Respond-
ent cannot be found to be guilty of breaching a nonexis-
tant duty to bargain
HYDRO CONDUIT CORP
C. The Circuit Court's Remand and the Issues Herein
As stated above, on February 3, 1981, the United
States Circuit Court of Appeals for the Tenth Circuit
issued two orders in cases concerning this Respondent.
One such order concerned Case 28-CA-5115, and the
underlying representation petition in Case 28-RC-3456
The order recited a number of the facts leading up to the
Certification of Representative, and then dealt with the
Respondent's objections to the election, labeling them as
the "substantial evidence issue" and the "motion for re-
consideration issue."
So far as the "substantial evidence issue" was con-
cerned, the court found no merit to the Respondent's ob-
jections However, with respect to the "motion for re-
consideration issue," the court stated that the record did
not show that the points raised by the Respondent's
motion for reconsideration were ever considered by the
Board, and noted specifically that the Respondent's
motion raised an issue concerning the possibility of im-
proper relationships between the Unions and representa-
tives of the Board, as well as the possibility of improper
influence by the Unions upon the Board's representa-
tives Accordingly, the court stated.
The Motion for Reconsideration and the underly-
ing facts must be examined at a hearing. The case
. . . is remanded with directions that the record be
reopened and a hearing be held on the [Respond-
ent's] Motion for Reconsideration.
D. The Issues Herein
The court's order must, of course, be utilized to deter-
mine the proper issues to be litigated here. Under that
order, as I construe it, two issues are clearly before me
for decision:
First: Whether or not the Respondent's "newly discov-
ered or previously unavailable" evidence shows that the
Union engaged in misrepresentations to employees to the
effect that the Respondent would be compelled to grant
a retroactive wage increase
Second- Whether or not the Union, preceding the elec-
tion, misrepresented to employees, or accurately advised
employees, that it would utilize the Board's personnel,
presumably in an illegal or an unethical fashion , to obtain
a retroactive wage increase in question.'
Additionally, during the course of the hearing it
became clear that the Respondent 's position was that the
order of the circuit court precluded any examination or
inquiry into whether or not the facts contained within
the motion for reconsideration, and accompanying affida-
vits, were or were not, in fact, either true or "newly dis-
covered," as that term is construed by the Board and
courts. 5
° Subsidiary to this question is, of course, the issue relating to the alle-
gation advanced by Respondent that one or more personnel employed by
the Board actively assisted the Union in this scheme by actions taken in
connection with Case 28-CA-4771, which was pending at the time of the
election in the underlying R case herein
5 In the midst of the hearing herein, this question was raised several
times, including once in connection with my ruling involving a contro-
versy regarding the enforcement of a subpoena , which has since been
mooted by the Charging Party' s withdrawal of the subpoena duces
1295
E The Scope of the Hearing on Remand
As shown above, the Respondent petitioned the circuit
court to review and set aside the Board's decision previ-
ously made in this case The Board had previously deter-
mined that Respondent had violated Section 8(a)(5) and
(1) of the Act based on its view that no newly discov-
ered or previously unavailable evidence or special cir-
cumstances existed to warrant to reexamination of its de-
cision or to require a hearing concerning the circum-
stances surrounding the underlying representation case.
In reversing the Board, the court rejected the Respond-
ent's attack on the "substantial evidence issue" (which in-
cluded the allegation that union agents falsely promised
that if the unions were elected, the employees would re-
ceive a wage increase) The court then went on to state
that:
This leaves, however, the [Respondent's] Motion
for Reconsideration and Reopening the Record.
The record does not show that the points there
raised were ever considered by the Board in re-
sponse to the motion or otherwise The motion
raised a matter of the possibility of improper rela-
tionships between the local representatives of the
Board and the Unions or some of their members. It
also concerned assertions that by reason of Union
influence with local Board representatives , a retro-
active wage increase could be forced on the [Re-
spondent]. These matters and the specific facts were
described in the motion and supporting material.
These were facts and issues not therefore consid-
ered together with a representation that they were
not known to the [Respondent] at the time of the
hearing. This is sufficient to cause the Board to hear
the matters. The subject sought to be raised was a
sensitive one relating to the position of the Board
and one which ordinarily would have been prompt-
ly considered. It was however not so considered
and, as well as we can determine from the record,
was never considered
The Motion for Reconsideration and the underlying
facts must be examined at a hearing . The case . .
is remanded with directions that the record be re-
opening and a hearing be held on the [Respond-
ent's] Motion for Reconsideration. It is so ordered.
[Emphasis added ]
In its factual recitation leading to the above decision,
the court stated that "It was further advered that this in-
formation was newly discovered and had not been avail-
able prior to the representation hearing " This statement
was made by the court in connection with its recital of
the filing of the motion for reconsideration and reopen-
ing of the record and the supporting documents and affi-
davits filed by the Respondent.6
tecum In light of its discussion of this point, I attach , as App B to this
decision, my "Order Denying Petition to Revoke or Quash Subpoena"
issued in this case on January 12, 1983
6 1 recognize that I am subject to the court ' s order I wish in no way
to seem to question or impugn it I cannot help , however, noting the in-
Continued
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the course of his initial presentation Respondent's
counsel, Pickering, elicited testimony from present
and/or former employees Alderete, Ulibarri, McGee,
and Finley, in addition to Respondent's former cocoun-
sel, Bingham
Neither Alderete nor Ulibarri had evidence of signifi-
cance in this case Alderete appeared to be incapable of
testifying without being led The essence of both Alder-
ete and Ulibarri's testimony was that rumors concerning
a retroactive wage increase were going around among
the employees Neither employee was able to attribute
such rumors to any representative of the Charging
Party/Unions. In any event, the fact that such rumors
might have occurred in this or any other pre-election
campaign seems scarcely surprising, and certainly not the
sort of evidence which would constitute a "special cir-
cumstance" or grounds for setting aside the election.
And, far more striking than any other aspect contained
within their testimony, is the clarity of Respondent's wit-
nesses, McGee and Finley, in testifying that their knowl-
edge of the events in this case was, at no time, unavail-
able to Respondent's counsel, and that, had Respondent's
counsel approached them and asked them for their obser-
vations, they would have told them. (Tr. 316-317 and
397.)
Thus, it seems obvious that Bingham's testimony as to
efforts in searching and scouring the employees' and the
supervisors' recollections for evidence of improper ac-
tivities preceding the election was either ineffectual or
untrue. Bingham conceded that it was he who handled
the investigation following the filing of the objections to
the election herein. He also conceded that he was alert
for indications that the Unions had told employees that if
they voted for the Union they would get a retroactive
raise. The two key witnesses (McGee and Finley) in this
hearing were, in fact, interviewed by Bingham, and now
testify that, had they been asked, they would have been
willing to tell him about the testimony that they now
give The Board agent who conducted the investigation
of the election objections at that time, Jorgensen, was
accuracy of the recital that a representation "hearing" in the underlying
R representation case with which we are here concerned was ever con-
ducted Instead, as noted above, no such hearing was held and the Re-
gional Director's report was based on an administrative investigation
which later formed the basis of the Board's decision
This point is mentioned only because I have utilized the wording of
the court's order to determine what I should hear and what I should not
hear During the course of the hearing it was the Respondent's position
that I should hear a broad spectrum of evidence, while the Charging
Party contended that I should hear no evidence if I was not first satisfied
that the "underlying facts" and "averments" were, in fact, "newly dis-
covered "
I shall not be so presumptuous as to here engage in a discussion of the
precedent used by the Board and the courts in determining whether or
not evidence is, in fact, "newly discovered" or "previously unavailable"
or that there were "special circumstances " These legal points have al-
ready been considered by the Board and this court
Nevertheless, with all respect to the court, I cannot agree with the Re-
spondent's contention It is a fact that no witness, including Respondent's
counsel, whose affidavit was attached to the motion for reconsideration,
and which formed its factual predicate testified during the course of this
hearing Instead, an attorney who vvas formerly associated with Respond-
ent's current counsel, testified at this hearing, in addition to numerous
other witnesses who were, in my opinion, not shown to been unavailable
to Respondent at the time that the representation case was under investi-
gation
conceded by Bingham to have fairly and promptly fol-
lowed up all of Bingham's suggested avenues of inquiry
with all witnesses
From all of this I have been drawn to the inescapable
conclusion that the "averments" contained within the
motion for reconsideration seems suspiciously contrived
After all, when a number of factual matters are set forth
in affidavits claimed to demonstrate the existence of facts
"newly discovered" and "previously not discoverable"
by use of due diligence, and yet none of the witnesses
who gave such affidavits were ever called as witnesses in
this hearing, but instead other witnesses were called
whose testimony was "discovered" at a still later date,
one cannot help wondering about the bona fides of the
claim that newly discovered evidence existed at the time
the motion for reconsideration was filed Moreover, in
view of the persistence of Respondent's counsel in the
use of leading and suggestive forms of questioning I
would be unable to attach great credence to much of
what Respondent's new witnesses testified 7
Thus, while reiterating my deference to the court's
order, I believe it is necessary that I state that I do not
believe that the Respondent actually possessed either
newly discovered or previously unavailable evidence, as
it claimed, in its motion for reconsideration
F. The Alleged Misrepresentation by the Union
The Respondent alleges that the results of the election
must be set aside because, some time during the critical
period preceding the election, agents of the Unions told
employees of the Respondent that if they voted for the
Unions they would receive a retroactive wage increase,
but that, if they did not vote for the Unions, they would
not receive the retroactive wage increase. It is further as-
serted by the Respondent that agents of the Unions im-
parted to employees that the wage increase referred to
would be obtained by means of assistance from agents of
the Board Indeed, it is asserted that a proposed settle-
ment agreement was shown to employees and passed
around at union meetings preceding the election, and
that agents of the Unions, in effect, bragged that they
had "influence" or "pull" which would secure a retroac-
tive wage increase.
As previously noted the petition for an election in
Case 28-RC-3456 was filed about March 3, 1978 The
election was conducted on April 27 of the same year.
This petition, like the charges referred to herein, was
handled by the Board's Regional Office headquartered in
Phoenix, Arizona, and its resident office located in Albu-
querque, New Mexico The petition was assigned to a
member of the Board's staff in Albuquerque named Jor-
gensen. So far as shown by this record Jorgensen han-
dled all aspects of the petition including the postelection
investigation and all dealings with Respondent or its
counsel.
While the petition was pending, an unfair labor prac-
tice charge was filed in Case 28-CA-4771. The Charging
Parties were the same unions which were the joint peti-
' This is to say nothing of their testimonial demeanor , which will be
discussed at a later point
HYDRO CONDUIT CORP
tioners in the then pending representation case. The
charge alleged a violation of Section 8(a)(1) of the Act
and referred to a letter distributed to employees by
agents of the Respondent, including not only administra-
tive officers of the corporation but also its attorney,
Leonard L Pickering According to the charge the letter
contained threats to withhold wage increases because of
the filing of the petition for an election It was further
charged that an annual wage increase had been withheld
which had been due early in March 1978. According to
the charge the withholding of the wage increase had
been explained to employees in the letter referred to
above as being "frozen" while the representation case
was pending This charge was assigned by the Board to
a field examiner for investigation. The field examiner's
name was Edward G Lopez. Among other things which
he did in connection with the investigation of this
charge, Lopez sent Pickering a letter on April 6, 1978. In
part, the letter called for Pickering to present the Re-
spondent's witnesses or other evidence in connection
with the pending investigation by April 12.
About April 20, 1978, however, the Unions filed an
amended charge. Essentially, the difference between the
original charge and amended charge was that the charge
named not only the Respondent as the charged party but
also "its agent, Leonard L Pickering "
On April 27, 1978, Lopez sent Pickering a letter pro-
posing a settlement Among other things the letter stated-
As you know, the Charging Party, on April 20,
1978, filed an amended charge, in which you were,
for the first time, personally named as a party re-
spondent. This amendment to the charge is still
being considered by the Region, however, in the in-
terest of expediting a possible settlement, I am pre-
pared to recommend to the Region the enclosed
proposed Settlement Agreement which, as you may
note, does not mention you by name and does not
require your signature on the Notice.
Lopez' letter closed by calling for the settlement agree-
ment to be effectuated no later than May 1, 1978, and
advising that a complaint must issue by that date and
that "I may not be able later to recommend the enclosed
Settlement Agreement."
The settlement agreement proposed by Lopez con-
tained provisions relating to threats to withhold wage in-
creases as well as the actual withholding of the same. It
also provided for employees to be paid all wage in-
creases which had been withheld from them because of
the pending representation proceeding
A complaint later issued from the Board's Regional
Office in Case 28-CA-4771. Its prosecution was con-
ducted by an attorney in that office named Louis S.
Harris It alleged a violation of Section 8(a)(1) of the
Act The decision of Administrative Law Judge Russell
L. Stevens thereafter issued, and was affirmed by the
Board and the circuit court of appeals. As shown from
that decision, and consistent with the Unions' charges
that employees had been illegally informed of a wage
freeze by means of a letter written by Respondent's
counsel, Pickering, Judge Stevens found that the letter
1297
which was distributed to Respondent 's employees as an
enclosure with their paycheck on March 17, 1978, consti-
tuted a threat to withhold a general wage increase from
the employees because of the union activities of employ-
ees The Respondent was ordered to assure employees
that it would not make such threats again.
It is clear that two cases (Cases 28-RC-3456 and 28-
CA-4771) were pending simultaneously , and that the
Unions claimed to have knowledge that the Respondent
and Pickering were threatening employees with the
withholding of a wage increase It is also clear that while
these two cases were pending they were being handled
by two different agents in the Board's resident office
Thus, at first glance, it would seem obvious that the
Unions would attribute a portion of the conduct claimed
by them to constitute unfair labor practices to Pickering
as well as the Respondent . Pickering is specifically
named in the original charge , though not as a charged
party It was not until the Board 's investigation had been
completed and an administrative determination had been
made on April 19, 1978, to issue a complaint , absent set-
tlement , that the amended charge was filed. The minutes
of the meeting in which the Board 's administrative deter-
mination was reached shows that the Regional Director
determined to proceed to complaint both with respect to
the threat to withhold the wage increase and the actual
withholding thereof 8
The bulk of the Respondent ' s alleged newly discov-
ered evidence was supplied by a witness named Hugh
McGee During the course of this supplemental hearing,
McGee testified that during the preelection campaign
period he was selected by fellow employees, in the
course of a meeting conducted by the Unions, to be a
"steward ." Indeed , he testified that he even conducted a
meeting of the employees at the Unions' hall McGee
stated that a union representative named Frutoso Chavez
told employees at a union meeting that "if a lot of em-
ployees voted for the Union that we would get this back
pay and if the majority didn't vote for them that we
would get no back pay at all " (Tr 95 ) McGee went on
to state that "Well, we were suppose to get a raise in
February and that there was a letter stating that Henry
Reza froze it, froze the increase so we didn't get it at
that time " Still further , McGee testified
Q Did he specify any particular time that the
back pay that he was referring to would cover?
A No, he didn't say that, but he said we were
supposed to get it, yes.
Q How did he say that you would get this back
pay if the majority voted for the Union and you
wouldn't get it if the majority didn't vote for the
Union?
A Yes
Q Well, did he spell out to you how, to what
manner or means the Union said that would get you
this back pay if the majority voted for the Union?
N The further details required for consideration of the question of the
alleged "blackmail" by the Board of Respondent's counsel, Pickering,
will be set forth at a later point
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, he had the National Labor Relations
Board to give us it, make the Labor Board give
us-well, make Hydro through the Relations Board
Q. He was telling you that the Union would get
you the back pay through the National Labor Rela-
tions Board, is that what you're saying?
A Yes, sir.
Q And do we understand you correctly that he
told you that the Union would get you this back
pay through the National Labor Relations Board if
the majority voted for the Union, but if on the
other hand the majority did not vote for the Union,
that you would not get the back pay9
A That's correct
Q. Was that something that he told you personal-
ly or privately or was it made in an announcement
to all employees or what?
A. It was made-
JUDGE HERZOG• I just wanted you to wait until
his question was finished before you answered
BY MR . PICKERING:
Q Go ahead.
A. It was made through the meeting we-the
Hydro Conduit plant employees at the meeting.
Q. At meetings with the Hydro Conduit employ-
ees that were held at the Laborers' Union hall?
A. Yes, sir.
Q And the statement that you just told us that
Frutoso Chavez made was made to all employees
present at the meeting at the hall?
A Yes, sir.
Q. Was that statement made at more than one of
the Union meetings?
A. It was mentioned at every one except the first
two.
Q. And you stated that there were six Union
meetings
A. Yes, sir
Q So this same sort of statement was made at
about four Union meetings; is that correct?
A Yes, sir, it was mentioned at every meeting
and some of the things that I couldn't understand
because a lot of people was chattering and some of
them was talking Spanish and things, but I under-
stand that they said that we was going to get the
back pay.
Q Did any of the other Union representative,
other than Frutoso Chavez, ever have anything to
say about this back pay or retroactive wage in-
crease?
A. No, this one guy was a Union representative.
He was talking mostly all the names and some of
the stuff I understand and some of the stuff I
couldn't understand because there was too much
talking going on
Q Well, what I'm asking you though, Mr.
McGee, did any of the other Union representatives,
either Mr Ralph Chavez, the Teamsters' represent-
ative who you've identified, or either of the other
two Union representatives whose names you can't
remember, either one of those three individuals ever
say anything along the same lines or on the subject
of the retroactive wage increase?
A Yes, all four of them did.
Q All four of them?
A. All four representatives
Q. Frutoso Chavez, Ralph Chavez and the two
Union representatives whose names you can't re-
member?
A Right.
Q. Did any of them ever say anything different
about this back wage increase particularly other
than what you've told us Frutoso Chavez said
about it'
A. No.
Q. So what you are telling us then, as I under-
stand you, and if I have this incorrect in any
manner, you correct me, is that all four of these
Union representatives that you have identified, at
one or more of at least four Union meetings told the
Hydro employees who were at these respective four
Union meetings that if a majority of the employees
voted for the Union, the Union would get them a
retroactive wage increase through the National
Labor Relations Board.
A. Right
Q. Is that correct?
A. That's correct.
Q And I also understand you that they further
told you that if a majority did not vote for the
Union, you would not get the retroactive wage in-
crease
A. That's correct.
Q. Did you yourself ever pass that word on to
the other employees, that's what the Union repre-
sentatives had told you?
A. Yes, I did.
Q Approximately how many employees would
you say you told that they would get a wage in-
crease if they voted for the Union, and they
wouldn't get it if they didn't vote for the Union.
A. Well, I told maybe about 10, 15 people,
maybe more.
McGee went on to testify further that he had not
heard the Union speak of getting this backpay by means
of negotiations, but "they was going to have the
N.L.R.B. get us this back pay." He specifically recalled
that at one meeting papers were passed around, appar-
ently purporting to be a settlement agreement and/or
notice from the National Labor Relations Board, calling
for a retroactive wage increase McGee stated that no
specifics were supplied as to how the wage increase was
to be obtained by the National Labor Relations Board,
but he volunteered that the Unions' representatives took
him and a man named Larry Montoya to the Board's of-
fices in the same building where the hearing in this case
was conducted. According to McGee, Frutoso Chavez
directed another representative of the Union to bring
McGee to the Board's offices.
McGee stated that he went to the Board's office, and,
although he gave no evidence, he talked to a man there
who he thought was a lawyer and a representative of the
HYDRO CONDUIT CORP
Board He described this man,9 and stated that he was
told by him that if a majority of the people voted for the
Union they would get their backpay and if the majority
did not vote for the Union they would get nothing Ac-
cording to McGee this occurred about a week or two
before the election
Another witness presented by the Respondent was
Richard C Finley . Finley testified that union representa-
tives told employees in March 1978 that they had not
gotten their raises in February due to the union activities
and they (the Unions ' representatives) were having it
looked into by the Board . At a later meeting he recalled
that Frutoso Chavez said that the Unions would take
unfair labor practices action against the Respondent for
withholding their wage increase. At yet another meeting,
he recalled that Frutoso Chavez stated that the Unions
intended to pursue the unfair labor practice charges
against the Respondent for withholding the wage in-
crease, and that the Unions could do this if they were
voted in, but, without being voted in, they could not do
anything about it. He recalled that Frutoso Chavez ex-
plained that the Unions would do this through the
Board, and that they were filing a petition to do this. He
recalled Frutoso Chavez telling employees that the peti-
tion for unfair labor 'practices went through the NLRB,
and that they could get a raise for the employees, but
that if the Unions were not voted in then they could not
get it for the employees . According to Finley, the union
representatives told employees that the wage increase
would be retroactive to the point where the Respondent
should have done it in the first place , back in February.
Finley claimed that McGee was "understood" to be
the Unions ' steward during March and April 1978. He
recalled that Frutoso Chavez told employees that
McGee would be the one to inform them when there
would be another union meeting. Contrary to McGee
and Finley, the Unions' witnesses uniformly denied that
McGee or anyone had been elected or appointed "stew-
ard," that McGee was authorized to speak for the Union,
that McGee was sent to the Board's offices to give evi-
dence, or that employees were told they would or would
not receive a retroactive wage increase depending on
their support , or lack thereof, of the Unions in the up-
coming election
In discussing these points , it should first be noted that
given the lapse of almost 5 years between the events and
their testimony , it seem entirely understandable to be
that each of the witnesses should prove to be somewhat
inaccurate or vague as to the details of his testimony.
Nevertheless, the Respondent was afforded ample and
repeated opportunities to demonstrate that McGee and
Finley were credible and to bolster their testimony in
various ways. The hearing was recessed so that McGee
could refresh his recollection regarding either a location
where he went to talk to the unnamed representative of
the Board or the home of the representative of the
Unions who was claimed to have taken him.
Despite this, I found McGee 's demeanor palpably neg-
ative, so much so as to leave very little room for argu-
9 His physical description of the man he saw at the Board 's office does
not fit Field Examiner Lopez
1299
ment that he should be credited . Finley's demeanor,
however, seemed quite good by comparison. Yet apart
from their demeanors, neither testimony withstands scru-
tiny, much less contradiction by witnesses produced by
the Unions i 0
First of all I cannot find that the evidence herein
shows that the Unions should bear responsibility for the
actions or words of McGee. Initially McGee claimed to
have been elected as a steward during one of the meet-
ings conducted by the Unions at the Unions' hall, and to
have on another occasion conducted a meeting at the
Unions' hall. Later in his testimony , however , while de-
scribing his duties while acting as a steward , McGee was
unable to state that they involved anything other than
talking to fellow employees in an attempt to get them to
cast their lot with the Unions and to advise employees
when union meetings were to be conducted. i i
Employee Lujan attended one union meeting He re-
called that it was conducted by McGee, and of some im-
portance , that McGee stated that he was going to con-
duct the meeting because there were no union officials
there. Lujan admitted that he had no knowledge of
whether or not McGee, in fact, possessed any authority
to act on behalf of the Unions
Another employee called by the Respondent , Domin-
guez, merely recalled McGee conducted the same meet-
ing testified to by Lujan , and that, in the course thereof,
employees asked questions which McGee did not know
how to answer . Specifically , however, Dominguez testi-
fied that he never heard McGee referred to as a steward.
Respondent also produced employees Lucero and San-
chez, neither of whom were helpful to them on this issue
or had any testimony concerning McGee's alleged au-
thority to speak for the Unions.
Another rebuttal witness produced by Respondent was
Robert Harper. According to Harper , McGee, Harper
and an unknown third man were "nominated" to be
union stewards. He recalled that no election actually
took place. Importantly , while Harper vaguely thought
the term "stewards" was applied to McGee, Harper
went further and was clear in his testimony that the
duties were described as simply letting people know
when the meetings were to be held , and nothing else. He
was specific in saying no indication of authority was
given to McGee.
The Charging Party/Union put several witnesses on
the stand to contradict McGee's claim that he had been
appointed as a steward . Frutoso Chavez, business manag-
er for Laborers ' Local # 16 both at the time of the elec-
tion and at the time of this hearing, testified concerning
meetings conducted by the Union , both before and after
the election He denied specifically that he ever appoint-
ed McGee, or anyone else , to act as steward at the Re-
spondent's facility and stated that the Unions ' policy is
10 Both McGee and Finley, though in layoff status with the Respond-
ent, received full pay from the Respondent throughout this supplemental
hearing , which each attended on a daily basis
' 1 This squares essentially with Finley 's testimony that he "under-
stood" that McGee was to be the Unions' steward in March and April
1978 Essentially , he merely recalled Frutoso Chavez saying to employ-
ees that McGee would be the one to inform them when there would be a
another meeting
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against appointments of a steward until after it has won
bargaining rights and a collective-bargaining agreement
has been reached It was admitted that, after the election,
Hugh McGee was appointed to a bargaining committee,
along with two other men.
Toby Pacheco, business manager for Laborers' District
Council, with which Local #16 is affiliated, was a field
representative with the District Council during the time
during which the election campaign occurred. He re-
called attending one meeting of Respondent's employees
prior to the election, together with Frutoso Chavez and
Ralph Chavez, and approximately 25 employees, includ-
ing Hugh McGee He was adamant in his denial that
any appointment of a steward was made. Like Frutoso
Chavez, Pacheco testified that the Unions never appoint
stewards unless there is a collective-bargaining agree-
ment in existence, except during an emergency, and that
he never heard of a steward being appointed during an
organizing campaign. Specifically, he denied that McGee
was appointed as a steward.
Ralph Chavez also testified to the practice that no
stewards were appointed by the Unions until after a col-
lective bargaining agreement was reached. He denied
that a steward was appointed prior to the election in-
volving this Respondent. He admitting knowing McGee,
but denied that McGee was the Unions' steward at the
Respondent.
Alfred Sandoval, now retired, had previously worked
for Local #16, but according to his credited testimony,
not during the time herein involved. During the 6 years
preceeding July 1978 he worked for a contractor, but
both before and after that period of time with the con-
tractor, he worked for Local #16. Specifically, he denied
that he recalled any acquaintance with McGee, or
having anything to do with the election at the Respond-
ent herein
While none of the Unions' witnesses was entirely with-
out flaw in their testimony, I would, based on their de-
meanor, credit each of them above any of the witnesses
produced by the Respondent, including Finley
Frutoso Chavez was clearly handicapped by a lack of
education and some difficulties in communicating , possi-
bly due to misunderstandings of the English language.
However, I found him to be straightforward and honest
in his appearance Respondent made much during the
hearing of his failing to recall the trial of the unfair labor
practice, or the outcome of the charges But my observa-
tion was that Chavez' credibility was impaired not at all,
for he was simply being quite literal. Toby Pacheco's tes-
timony simply had the ring of truth to it. He gave me an
extraordinarily favorable impression, both as to his ve-
racity and as to his ability to recall and recount accurate-
ly. Ralph Chavez impressed me as basically credible, de-
spite a pronounced inclination to behave defensively and
melodramatically. I would credit him above McGee de-
spite these shortcomings in his testimonial demeanor, and
I do so here in light of the testimony of Pacheco and
Frutoso Chavez in corroboration. Alfred Sandoval was
another man who projected honesty and accuracy. He
was cautious to a fault in his efforts, not to overstate, but
never to evade or equivocate
Accordingly, based on all the above, I must conclude
that at no time was Hugh McGee appointed, elected, au-
thorized, or otherwise empowered to act as a steward
for the Unions herein Specifically, I find that he was
never an agent of the Union so as to bind it with his
statements It follows, therefore, that, whatever McGee
may have stated to other employees, his words are not to
be imputed to the Unions or used as a basis for setting
aside the election herein While I would have no doubt
that McGee may well have asserted himself into a bit of
limelight in the absence of any representatives of the
Unions, and that he may have presumed to speak for the
Unions, or that the Unions may have used him as a con-
duit for its announcements of meetings , this does not
even come close to the showing that the Respondent
would be required to make in order to succeed in setting
aside the election. McGee's apparent need to project
himself into the center of attention, evident throughout
the conduct of this hearing, persuaded me that he could
fulfill such a role during the conduct of the election cam-
paign.
I find and conclude that the Unions are not bound by
any statements, including rumors concerning a retroac-
tive wage increase, passed along to fellow employees by
Hugh McGee.
Next, I turn to the question of whether or not the
agents of the Unions named above, or some member of
the staff of the Board, assured employees, including
McGee, that they would receive a retroactive wage in-
crease if they voted for the Unions, but that they would
not receive such a wage increase if they voted against
the Unions or if the Unions did not succeed in winning
representation rights.
According to McGee, one or more union representa-
tives12 told employees words to the effect that "if a lot
of employees voted for the Union, that we would get
this back pay and if the majority didn't vote for them
that we would get no back pay." With the interpretative
and suggestive "questions " put to him by Respondent's
attorney, Pickering, McGee was eventually able to state
that the Union would be able to get employees the back-
pay mentioned through the Board, depending on how
they voted Of six meetings conducted by the Unions,
according to McGee, the same or similiar statements
were made at all except the first two.13
According to McGee, and others, anywhere from 10
to 25 employees were present at various of these meet-
ings The Respondent called a number of witnesses to
testify about these matters, in an attempt to corroborate
the testimony of McGee. None but Finley testified to
matters which would be violative even if credited.
Finley's testimony on this subject was to the effect
that he heard Frutoso Chavez, and possibly other union
officials, speak at approximately four meetings concern-
12 Initially he stated it was only Frutoso Chavez, with leading he
modified his testimony to include Ralph Chavez and two other unnamed
union representatives
13 McGee's testimony must be continually assessed while bearing in
mind his admission that and some of the things I couldn't understand
because a lot of people was chattering and some of them was talking in
Spanish and things, but I understand that they said that we was going to
get the back pay "
HYDRO CONDUIT CORP
ing the question of whether or not employees were due a
wage increase and what the Unions intended to do about
securing it for the employees According to Finley, the
first two times he heard Frutoso Chavez or others speak
about this matter arose in the course of union meetings
when it was brought up, apparently by employees, that
the time when they should have received a wage in-
crease according to past practice had gone by and they
had not yet received it Naturally enough , the Unions'
position was stated to be that the employees were due
such a wage increase and that its withholding by the Re-
spondent was a retaliation for their having engaged in
union activities The Unions assured the employees that
it was going to file unfair labor practices against the Re-
spondent on account of the failure or delay in this alleg-
edly due wage increase Finley further testified that the
third time Frutoso Chavez spoke about the matter at a
union meeting , he told employees that the Unions had
decided to go ahead with the filing of the unfair labor
practice charge because of Respondent 's having withheld
the wage increase and that, if the Unions were "in" they
would have the "authority to pursue this to its fullest
extent, where as without being voted in that they would
not be empowered to do anything about it ." And, finally,
Finley, with memory seemingly murky , was prodded
until he claimed to recall that someone on behalf of the
Unions at a fourth meeting told employees that "this pe-
tition had been going through against [ Respondent] for
unfair labor practices and if the Unions went in then
they could get this raise for us and if the Unions did not
that there was no way that they could get this raise."
With suggestions from Respondent 's counsel , Finley was
further able to testify that the Unions had made state-
ments that if the Unions were voted in they could get
the raise for employees "through the Labor Board," that
the raise was to be retroactive , that the Unions ' repre-
sentatives made no statements about what their efforts
would be regardless of the outcome of the election, and
that no Union representative ever denied "the assertion
that you've told us about that getting this raise depended
on the Union being voted in
Both McGee and Finley testified that they recalled
being shown some sort of "notice to employees" (per-
haps the notice in Case 28 -CA-4771 ) at a union meeting
conducted approximately 3 weeks before the election
Assuming the accuracy of the stated time for the
moment , this, of course , would place such notice at point
in time before any determination had been reached as to
the merits in Case 28-CA-4771, much less any proposed
notice having been distributed
According to Frutoso Chavez, only two meetings
were conducted for the employees involved in the elec-
tion prior to the election itself He testified credibly that
he never saw an informal settlement agreement or pro-
posed notice prior to the election involving the concur-
rent unfair labor practice case and that no notice or pro-
posed informal settlement agreement was ever circulated
at any meeting before the election . He claimed that he
never told any employees that the Unions would secure
retroactive wage increases for them prior to the election
and that only on one occasion did he go so far as to tell
them that all he could do was to file an unfair labor
1301
practice charge He acknowledged that at a meeting he
conducted following the election the employees asked
him about the charge and its pendency, but he was ad-
mittedly weak on the details about what he was asked.
Specifically he denied having told employees that any
wage increase, retroactive or otherwise, was dependent
on how they voted
The essence of Frutoso Chavez' testimony was cor-
roborated by that of Toby Pacheco Ralph Chavez, the
assistant business agent for Teamsters Local #492, credi-
bly testified that he attended only one meeting, it oc-
curred prior to the time when any allegedly objection-
able statements would have been made.
I must conclude that the Respondent has failed to
demonstrate by credible evidence that the alleged mis-
representations were ever made during the critical period
herein. I have no doubt that employees were inquisitive
concerning the Unions' intentions and ability to help
them in securing a hoped-for pay increase. But it seems
most likely to me that the question was raised, if at all
during the critical preelection period, only at the very
late portion thereof, following the conclusion of the in-
vestigation into the concurrent unfair labor practice
charge. Since the evidence clearly demonstrates that any
proposed notice herein was first published by means of
Board Agent Edward Lopez' letter mailed to Respond-
ent's counsel on the day before the election, which was
received in his office only on the very day of the elec-
tion, it is most unlikely in my view that any proposed
notice and settlement agreement was passed out, distrib-
uted, or otherwise misused in any fashion which would
tend to make voters believe that the Board or any of its
agents favored the Unions Rather, it would appear most
logical to think that the use of any such notice (which is,
after all, not invalid in and of itself) occurred at a meet-
ing conducted following the election, at a time when it
could have no effect on the outcome of the election It
appears to me that the testimony of Frutoso Chavez
should be credited over that of either McGee or Finley
and I do so in any area of conflict. While I had a good
impression of Finley's demeanor, I see little reason to
think of him or McGee as reliable witnesses, not suscep-
tible to suggestions and leading.
Both McGee and Finley professed a willingness to tell
their tales to anyone who should have asked following
the election Respondent's former cocounsel acknowl-
edged having questioned and requestioned the employee
complement for evidence of the events described by
them. Notwithstanding these facts, it is beyond doubt
that no such evidence was produced by the Respondent,
or pointed to as a basis for inquiry for the assigned
Board agent.
Taking all these factors into account14 it seems most
unlikely that McGee and Finley should now be found to
have accurately recounted and recalled the events pre-
ceding an election which occurred some 4 to 5 years
prior to their testimony herein Rather, taking into ac-
count the clear susceptibility toward accepting suggested
14 Including the fact that no credible corroboration was brought for-
ward from other employees
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony demonstrated by each during this hearing, and
remembering that neither of these witnesses was even
mentioned in the motion for reconsideration and the sup-
porting affidavits filed therewith, it seems most likely
that what evidence they had was discovered and perhaps
enlarged somewhat in the time period immediately pre-
ceding the hearing herein.
While it is not necessary to determine dust when
McGee and Finley came to view the evidence as they
testified they did, I do find that they are both unreliable
witnesses and I do not credit their testimony concerning
the misrepresentations.
G. The Alleged "Blackmail" or Undue Influence
Issuer
Respondent's counsel asserts that the Board agent con-
ducting the investigation in Case 28-CA-4771 attempted
to "blackmail" him into accepting the settlement agree-
ment proposed by the Board agent in his letter of April
26, 1978 In that letter the Board agent spoke of the pos-
sibility that, unless accepted promptly, the current settle-
ment proposal might not be available in the future, and
that, instead, it might prove necessary to then insist upon
a settlement naming Respondent's counsel personally
Many of the facts surrounding. this allegation were
necessarily set forth in an earlier point herein and will
not be repeated. However, additional facts and resolu-
tions of credibility are necessary at this point.
It is undisputed that Respondent's current counsel,
Pickering, was out of his office between approximately
April 6 and 24, 1978. In Pickering's absence it appears
that his clients' affairs were handled by Pickering's then
associate, an attorney named Wayne Bingham. ► s
According to Lopez, on April 6, 1978, he hand deliv-
ered a letter to Pickering, in which Pickering was given
a deadline of April 12 for submitting evidence on Re-
spondent's behalf in connection with Case 28-CA-4771.
Later that day Lopez talked with Pickering by phone
and was advised by Pickering that Pickering was leaving
for Mexico later that day and would not be able to re-
spond further to the charge by April 12, the deadline.
Lopez testified that he reminded Pickering that other at-
torneys in his office were available to handle the case
According to Lopez, Pickering bluntly told him that he
wanted no one else touching the case while he was gone.
All of the above testimony by Lopez is unrebutted and
is credited.
Notwithstanding the instructions to Lopez from Pick-
ering, it is claimed by Respondent that Lopez disregard-
ed those instructions and, in Pickering's absence, contin-
ued to press for settlement during as many as three
phone conversations with Pickering's associate, Bingham.
Bingham so testified, saying that basically the proposal
was to grant Respondent's employees the retroactive
wage increase and to remove Pickering's name as a
charged party from the amended charge. Bingham testi-
fied that, in each instance, his response to Lopez was
15 Board Agent Edward Lopez mentioned the possibility that another
associate of Pickering's might possibly have handled all or part of the
case But no one recalled that he actually performed any functions in
connection with the matters under discussion here
that he could not discuss settlement in Pickering's ab-
sence
Lopez denied and contradicted Bingham's testimony in
this respect, claiming that he dealt with no one during
Pickering's absence. Lopez specifically denied that be-
tween April 19 and 27, 1978, the respective dates of the
Regional's administrative determination as to the merits
of the charge in Case 28-CA-4771 and the election in
Case 28-RC-3456, that he had any conversations with
Bingham concerning the case which he was handling,
i e., the unfair labor practice charge Further, he testified
that the only attorney he ever spoke to regarding that
case was Pickering himself and that the only time that he
ever proposed a settlement was in the letter set forth
above sent to Pickering on April 26, 1978.
On these points I credit Lopez and discredit the testi-
mony of Bingham While it was my very clear impres-
sion that Lopez had only a limited understanding of, or
concern with, the Board's internal administrative instruc-
tions, he gave the appearance of being a truthful witness
Sadly, Bingham did not. Bingham was at pains to dem-
onstrate an air of casual, even flippant, unconcern during
his testimony, to the point of seeming smug , evasive, and
careless. I conclude , as a result of this credibility deter-
mination , that there were no conversations between
Lopez and Bingham concerning the outstanding unfair
labor practice charge during Pickering's absence and,
further, that, to the extent that Pickering's claim of
"blackmail" is supported by any such "facts" as were re-
peatedly voiced by him in branding Lopez a "liar," the
"blackmail" charge must fail. I am simply unable to
weave so fine a web as that which has been spun out by
Pickering, in an evident, and obviously successful, effort
to win with delay what was lost at the ballot box.
Nor, even apart from considerations of demeanor, do I
consider Respondent's arguments persuasive. For exam-
ple, Respondent's counsel makes much of the fact that a
deadline for the submission of evidence was established
for April 12, a date well in advance of the "30 day time
target" established by the Board's own internal adminis-
trative policies. But, it is well known that the General
Counsel's administrative policies call for the completion
of the investigation of an unfair labor practice charge
within 30 days of the date of its filing, and that, should
merit be found to the charge on an administrative basis,
settlement or complaint to be effectuated within 45 days
of its filing. It must be borne in mind , however, that
these administrative guidelines are not accorded the
force of law, and that, in any event, they relate merely
to the median time during which cases of like nature are
processed. Thus, the Regional Office would, obviously,
instruct its agents to attempt to complete processing of a
case within 30 days. But the Regional Office itself is
asked to account only for the median time during which
such cases are processed. Thus, whatever the "time
target," any Regional Office must expect that exceptions
must be made in numerous cases Some cases will' take
longer, and some cases can be processed in a shorter
time than the "time target " So far as the Regional Office
is concerned, it is the median date which is of impor-
tance.
HYDRO CONDUIT CORP.
Here, however, no such reference is made by Re-
spondent's counsel He makes no attempt to tie this case
in with other cases pending in the Regional Office, the
Resident Office, or those other cases being handled by
either Lopez or Jorgensen at the time of this election. In
short, while Respondent's counsel finds it quite suspi-
cious that Lopez would have given him a deadline of
April 12, I find it quite reasonable that he might have
given him such a date One cannot presume that Board
agents such as Lopez are immune to delay, whether it is
of their own making or caused by someone outside their
office. Thus, when agents are asked to set a time dead-
line for parties to submit evidence it is with the obvious
thought in mind that there may be delays, that its proc-
essing will have to be coordinated with that of other
cases, that its meaning will have to be considered in con-
junction with other evidence in the file, that its receipt
may point toward other evidence which should be gath-
ered and considered, and that all of the above will re-
quire time to complete and run through the administra-
tive process. The more valid question on Respondent's
part is whether or not it was afforded a fair opportunity
to present its evidence in conjunction with Case 28-CA-
4771. I see no evidence that it was not. Of course, Pick-
ering was out of town during part of this time period.
But it remains true that he had an opportunity to either
submit evidence before he left, to instruct others to
attend to its submission during his absence, or to request
an extension of time should it have been needed. While
there is the unsupported claim that Pickering encoun-
tered difficulty in contacting Lopez, it cannot be denied
that he had ample opportunity to contact the Board's
Resident Office or its Regional Office and speak to one
of Lopez' superiors had he needed additional time, or
had he wished to avail himself of any other means of
submitting evidence. No evidence that he did so has been
submitted.
Pickering additionally complains that Lopez' evident
failure to immediately advise Bingham of the administra-
tive determination by the Regional Office to issue a com-
plaint on April 19, or soon thereafter, as well as the
timing of the complaint's issuance, furnish evidence of
untruthful testimony by Lopez and, perhaps, a bent or
inclination on his part to blackmail Pickering and aid the
Unions. I cannot agree with any such allegation. Any ob-
server of Lopez testifying would have seen that he is not
a man given to subtlety. His slavish adherence to the
"letter of the law," so far as his imperfect understanding
of the workings of the time-target-system is concerned,
may be understood to explain and account for each and
every action taken by Lopez, as easily as any of the alle-
gations made by Respondent's counsel For example, it
makes little sense to believe that Lopez would have
waited until the very day before the election was to be
conducted before depositing a proposed settlement agree-
ment in the mail to Pickering, if he were in fact intent on
having such a proposal communicated to employees and
thereby aid the Unions. Contrary to Respondent's con-
tentions, I prefer to decide the case by resort to the more
ordinary and routine of the various explanations present-
ed as possibilities.
1303
And that brings me, finally, to the real kernel of this
case, the allegations of Board agent misconduct. Specifi-
cally, Respondent, through Pickering, asserts that some
agent of the Board, probably Lopez, met with McGee
during the period preceding the election and interfered
with the election by telling McGee that the Board was
going to help the Unions get retroactive backpay provid-
ed that the employees voted for the Unions.
Simply put, this claim is not true It never occurred,
except within the mind of a witness readily recognized as
one quite susceptible to suggestions. Even then it oc-
curred only following 4-1/2 years of gestation
In its brief, Respondent admits that McGee was unable
to identify Lopez as the person he claimed to have
spoken with at the Labor Board's offices for about 30
minutes some 5 years previous thereto. The brief goes
on, however, to argue that since Lopez was the only
person assigned to this particular case at that particular
time, it is almost a certainty that he had to be the person
that McGee was taken to by the Unions for the purpose
of giving a statement in support of their charges (bearing
in mind that McGee testified at one point that he signed
a statement)
Initially McGee testified that he and another man
named Larry Montoya heard a Board attorney tell them
that if they voted for the Unions they would get back-
pay, and that he went on to repeat this statement to
seven or eight other employees. He went on to state that
during that first day of the hearing, it "came to him"
that it was at the precise office where the hearing was
held that he had been taken by someone from the Unions
and talked to by the unknown lawyer from the Board.
When questioned about this in some detail, he recalled
and recounted at length the building he was taken to had
distinctively colored carpet and that the office space was
arranged with orange office dividers. He recalled that
the Unions' representative introduced him to the Board's
lawyer. He described the lawyer's appearance (which
was considerably taller and heavier than that of Field
Examiner Lopez', to say nothing of Lopez' Latino ethnic
background). According to McGee, he was sent down to
the Board's offices by Frutoso Chavez to give evidence
about the wage increases sometime in March 1978. While
he initially claimed that he did not sign anything in the
Board's offices, he later changed that testimony At other
points in his testimony he admitted that it may not been
the same building, after all, as that in which this hearing
was conducted. Then, again, it may have been a different
agency than the NLRB, perhaps a State agency.
In an effort to give Respondent and McGee every op-
portunity to get McGee's testimony straight, I allowed
the witness to be taken on a tour of the Board's offices,
so as to be more sure of what he had seen and recollect-
ed about the alleged meeting, and whether or not it was,
in fact, the NLRB's offices that he was taken to by
someone from the Unions.
All this led to still further confusion on the part of the
witness For he time and again changed his testimony; he
said that it was not Montoya, but a man named Rubin
Lucero who had accompanied him on this trip. Further,
instead of being accompanied to the Board's offices by
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alfred Sandoval, as he had earlier testified, he changed
his testimony to claim that he was accompanied by Fru-
toso Chavez.16
If one were simply to look at the testimony of McGee,
Finley, and Lucero it is quite impossible to find any co-
herent or believable story as to such facts as the identity
of the alleged lawyer for the Labor Board; where
McGee was taken, or by whom; the identity of the build-
ing that he went into; the identity of the offices that he
went into, the color of the walls, carpets, drapes, or
other aspects of the interior of the building, whether he
signed a statement at that time or did not sign a state-
ment at that time; who accompanied him, who sent him;
and whether his companion or companions waited for
him outside the building or accompanied him into the
building and into the Board's offices (or whichever of-
fices he went into)
I conclude that McGee's evidence in this connection is
worthless, and I do not credit it in any area where it is in
conflict with that of Edward Lopez or Frutoso
Chavez. 17
Conclusions
corded the services of their selected point bargaining
agents for the period provided by law, the Board con-
strue the initial period of certification as beginning on
the date the Respondent commences to bargain in good
faith with the Unions as the recognized joint bargaining
representatives in the appropriate unit See Mar-Jac Poul-
try Co, 136 NLRB 785 (1962), Lamar Hotel, 140 NLRB
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U S 817 (1964), Burnette Construction Co ,
149 NLRB 1419, 1421 (1964), enfd. 350 F 2d 57 (10th
Cir. 1965).
It appears that the "averments" made to the circuit
court of appeals by the Respondent's attorney were not
only without foundation, but so patently lacking in merit
as to appear to be either irresponsible or frivolous. It is
recommended that the Board note that this is not the
first incident in which the same attorney has succeeded
in securing a supplemental or reopened hearing based on
claims that newly discovered evidence existed or that
other parties, including agents of the Board, were guilty
of dishonest conduct. See Rowland Trucking Co., 270
NLRB 247 (1984); and Frank Paxton Lumber Co, 235
NLRB 582, 586-587 (1978)
In view of the fact that I have found no credible evi-
dence to sustain the contentions advanced by the Re-
spondent or its counsel, I recommend that the underlying
certification not be disturbed in Case 28-RC-3456, that
the Respondent's refusal to meet and bargain and negoti-
ate in good faith with the Unions with respect to the
wages, hours, and working conditions of employees in
this certified unit be found to be violative of Section
8(a)(5) and (1) of the Act and that the Board order the
Respondent to take appropriate remedial action.
THE REMEDY
In light of my findings set forth above, it is recom-
mended that the Board affirm its remedy and holdings of
May 10, 1979, and find that the Respondent had engaged
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act, order that
it cease and desist therefrom, and, on request, bargain
collectively with the Unions as the exclusive joint repre-
sentative of all employees in the appropriate unit, and, if
an understanding is reached, embody such understanding
in a signed agreement
Further, it is recommended that, in order to ensure
that the employees in the appropriate unit will be ac-
16 A fact that Frutoso Chavez credibly denies
" Even aside from the incredible tale told by McGee, and taking into
account the testimonies of Finley and Lucero attempting to corroborate
various portions thereof, I would credit the testimony of Lopez that he
never saw McGee prior to the hearing herein, and that he never told him
anything one way or another about the Respondent, retroactive wages,
or anything else having to do with any of the cases bound up in this con-
troversy
I would additionally credit the testimony of Jack Schwartz, who per-
formed the maintenance and janitorial work upon the building housing
the Board's office at Albuquerque for 8-1/2-year period preceding the
hearing herein He described these facilities completely different than
those described by McGee, and credibly testified that they had been that
way throughout his tenure Lopez' testimony concerning the appearance
of the building's interior was somewhat less detailed than that of
Schwartz, but was entirely consistent therewith and was entirely credi-
ble
CONCLUSIONS OF LAW
1 Hydro Conduit Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Chauffeurs, Teamsters and Helpers Union Local
#492 (Ind) and Laborers' International Union of North
America, Local #16, AFL-CIO are labor organizations
within the meaning of Section 2(5) of the Act
3. All production and maintenance employees includ-
ing truckdrivers employed by the Respondent at its Al-
buquerque, New Mexico operations; excluding all office
clerical employees, guards, watchmen and supervisors as
defined by the Act, as amended, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since September 25, 1978, the above-named labor
organizations have been and now are the certified and
exclusive joint representatives of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5 By refusing since about October 2, 1978, and at all
times thereafter to bargain collectively with the above-
named labor organizations as the exclusive joint bargain-
ing representatives of all the employees of the Respond-
ent in the appropriate unit , the Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6 By the aforesaid refusal to bargain, Respondent has
interfered with, restrained, and coerced, and is interfer-
ing with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act, and thereby has engaged in, and is engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
HYDRO CONDUIT CORP
[Recommended Order omitted from publication.]
APPENDIX B
ORDER DENYING PETITION TO REVOKE
OR QUASH SUBPOENA
On December 23, 1982, Respondent, through counsel,
petitioned that I revoke or quash, in whole or in part, a
certain subpoena duces tecum, i duly issued by me to
counsel for the Charging Party pursuant to his written
request therefor on December 3, 1982, during the course
of a hearing then being conducted before me in Albu-
querque, New Mexico.
The hearing was adjourned from December 3, 1982,
until December 20, 1982. Upon its resumption the instant
controversy arose, when Respondent refused to produce
certain affidavits in the possession of its counsel, as
called for in paragraph I of the subpoena.2 I then in-
quired of Respondent's counsel whether a motion to
quash or petition to revoke the subpoena was being pre-
sented Respondent's counsel responded that no such
motion or petition was being presented to me, notwith-
standing his contention that certain features of the sub-
poena should be found objectionable
In due course I ruled that the materials called for by
paragraph 1 of the subpoena must be produced.3 The
Respondent then declined to comply with my ruling,
whereupon the Charging Party requested, and I directed,
that the General Counsel for the National Labor Rela-
tions Board initiate subpoena enforcement proceedings in
the appropriate United States District Court, pursuant to
the provisions of Section 102.31(d)4 of the Board's Rules
and Regulations.
In the course of an ensuing discussion of procedures,
and their timing, as they affected the presentation of the
remainder of the evidence in this case, I was informed by
counsel for the General Counsel that the Regional Direc-
tor for the National Labor Relations Board was ". . .
not prepared at this point to file the necessary papers in
Federal District Court which would permit the Charging
Party to seek enforcement of the subpoena." Instead,
counsel for the General Counsel requested that the
Charging Party furnish a letter or statement of position
to the Regional Director detailing the need for the infor-
mation sought by the subpoena, what use the information
was to be put, and "why some other means is not avail-
able" to obtain the information.
i Respondent 's petition refers to a subpoena "which is attached hereto
as Exhibit A " While the petition filed with me did not, however, have
any attachment , it is clear that the petition relates to subpoena number B-
285328, the subject of a controversy in the captioned case
2 Respondent's counsel acknowledged on the record that the subpoena
had been served on December 13, 1982
3 I shall not restate the basis for my ruling herein
4 Which reads
"(d) Upon the failure of any person to comply with a subpoena
issued upon the request of a private party the general counsel shall in
the name of the Board but on relation of such private party, institute
proceedings in the appropriate district court for the enforcement
thereof, unless in the judgment of the Board the enforcement of such
subpoena would be inconsistent with law and with the policies of the
Act Neither the general counsel nor the Board shall be deemed
thereby to have assumed responsibility for the effective prosecution
of the same before the court "
1305
In its petition Respondent argues that (a) the time
period provided by the Board's Rules and Regulations"
should be "waived," since the Respondent had refrained
from filing it at an earlier date out of a "spirit of coop-
eration"; (b) that I have "aided, abetted and compound-
ed" an abuse of Board processes by "an attempt . . to
usurp the function [of] the Regional Director, the Gener-
al Counsel and the Board to the point of . . attempting
to further play a prosecutorial and partisan role in this
matter", (c) that the Respondent's use of the testimony
of a former associate of the Respondent's counsel "was
necessitated" by a "ruling" by me accurately to be de-
scribed as "newly discovered", and (d) that I "demanded
enforcement of the subpoena in Court despite the lan-
guage of Section 102 31(d) of the Board's Rules and Reg-
ulations, as well as the Board's Case Handling Manual
Section 11790.1."
The Respondent's arguments lack merit and its petition
is hereby denied.
First of all, whatever the motives of Respondent's
counsel in refraining from filing a timely petition, they
provide no warrant for me to ignore the time limit set
forth in Section 102.31(b) of the Board's Rules and Reg-
ulations. That time limit being only 5 days, and the sub-
poena having been served by mail, under the provisions
of Section 102.114(a) of the Board's Rules and Regula-
tions, Respondent was entitled to an additional period of
3 days within which to file its petition. Thus, the subpoe-
na having been served on December 13, 1982, a Monday,
and no extension of time to file having been either re-
quested or granted, the Respondent's petition to revoke
could have been filed on a timely basis as late as the
close of business on Tuesday, December 21, 1981. Even
assuming the accuracy of the assertions of Respondent's
counsel that he was out of town on another matter and
that the subpoena was not brought to his attention until
his return on December 17, 1982, there has been no good
cause shown why a timely petition, or request for exten-
sion of time, was not filed In light of my inquiry, on De-
cember 20, 1982, still within the time limit, of Respond-
ent's counsel whether I was being presented with such a
petition, and his response that no such petition was being
presented to me, I see no reason to now "waive" the
time limits provided, and allow him to file a petition
based upon premises substantially wider than those as-
serted by him, and ruled upon by me, at the trial To do
so would allow him an unfair advantage over other par-
ties, and would be inconsistent with the goal of conduct-
ing a fair and orderly hearing. In cases where late-filed
petitions are accepted it is a universal requisite that there
be an absence of prejudice to other parties and the order-
ly progress of the hearing Here, an adjournment of in-
definite duration already having occurred, no such show-
ing seems possible.
Nor did I "necessitate" the Respondent's use of testi-
mony from its counsel's former associate. Indeed, when
6 Section 102 31 thereof provides in pertinent part that, "Any person
served with a subpoena, whether ad tesuficandum or duces tecum, if he
does not intend to comply with the subpoena, shall within 5 days after
the date of service of the subpoena upon him, petition in writing to
revoke the subpoena "
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this precise contention was asserted to me prior to any
such evidence being presented, I disclaimed any such
intent, or that I had so ruled. To the contrary, when met
with the assertion by Respondent's counsel that, "I have
personally read the [Circuit C]ourt's decision in this
matter as having put that issue at rest-," I responded,
"Perhaps they have," (Tr. 399) and later explained,
Obviously, sir, I have no authority to change any
ruling of the Circuit Court of Appeals. So it really
doesn't matter what I think about this. As you
know, yesterday morning I came in and I had the
formal papers presented to me, I read them and I
have not studied them in the detail to which-with
which I will study them before I write a decision in
this case. Nor, frankly, have I truely [sic] studied
the language of the Board. But I will say that from
a preliminary standpoint it does seem to me that at
some point someone is going to have to look at the
evidence, which you now have presented in suport
of your allegations and determine if that really was
the soft of evidence which was discoverable with
the exercise of due diligence. That's all I will say at
this point and I think with that you should get on
the phone and call your former associate, if you
choose to do so. I do think, though, that you're at the
point where you either have to close, either have to
rest or something Jr. 402) [Emphasis added.]6
In short, I declined to allow Respondent's counsel to
shift a decision regarding his own trial tactics to me. My
comments to him cannot be said to have "necessitated"
anything from him, other than his announcement of a de-
cision about what he wished to do. It was the exclusive
choice of Respondent's counsel to put his former associ-
ate on the witness stand. Simply because his decision had
repercussions which were unexpected by Responsent's
counsel provides no basis for me to now accept responsi-
bility for its making.
Nor have I, attempted to usurp the functions of the Re-
gional Director, the General Counsel or the Board, by
playing a prosecutorial or partisan role, or by demanding
enforcement of the subpoena in contravention of the
Board's Rules and Regulations, or the Board's Casehan-
6 I note, however, that my refusal to agree readily with the position
advanced by Respondent's counsel seems as valid now as it did when I
stated it at the hearing For the Circuit Court's language in its order
clearly states that, "The Motion for Reconsideration and the underlying
facts must be examined at a hearing " (Emphasis added ) In its recitation
of facts forming the basis for its order the Court stated that, "It was fur-
ther averred that this information [supporting the Motion for Reconsider-
ation ) was newly discovered and had not been available prior to the repre-
sentation hearing " (Emphasis added )
Thus, it is evident that the Court was taking pains to make clear that it
was not making a finding that the evidence was, in fact, newly discov-
ered or previously unavailable, but was indicating its desire that the aver-
ments' accuracy be examined Yet, on the other hand, it is difficult to de-
termine whether the Court's language was intended to be read so precise-
ly, for, contrary to the Court's recitation of facts, no representation
"hearing" was ever conducted upon the Respondent's objections to the
election Rather, the objections became the subject of an administrative
investigation and were reported, with recommendations, to the Board by
the Regional Director on June 2, 1978 Thus, I restate my view, ex-
pressed to Respondent at the trial, that i shall reserve my ruling upon
this point until such time as I write my decision on the merits of the case
dling Manual To the contrary, as I told Respondent's
counsel during the trial, I merely sought to understand
the Regional Director's position and its implications for
the conclusion of this case By the clear language of Sec-
tion 102.31(d), set forth above, in cases such as this it be-
comes the duty of the General Counsel to institute en-
forcement proceedings before the appropriate district
court, except in cases where the Board determines that
doing so would be contrary to law and policy.
I sought to determine what might be thought to be so
inconsistent about by ruling, only to be repeatedly met
with counsel for the General Counsel's statement that
the Regional Director believed "that it's discretionary
with the General Counsel as to whether we should file
the necessary papers." (Counsel for the General Counsel
conceded, however, that the Charging Party is fore-
closed from itself proceeding to the District Court to
obtain a ruling on the subpoena's enforcement). I ac-
knowledged, on the record that I could understand that
the General Counsel, the Regional Director, and the
Board might well wish to avoid being caught up auto-
matically in some enforcement proceeding which would
be so contrary to law or policy as to be "off-the-wall"
(Tr. 885), but I was never successful in learning just
where the General Counsel's or the Regional Director's
disagreement with my ruling lay.
Thus, I do not view my actions in directing the Gen-
eral Counsel to initiate enforcement proceedings as con-
trary to the provisions of Section 102.31(d) of the
Board's Rules and Regulations Quite the opposite, for,
as one court has stated.
Congress has made elaborate provisions for obtain-
ing and enforcing [NLRB] subpoenas, and `[i]t was
obviously its intention that this machinery be uti-
lized ' [Citation omitted]. We may not infer that
Congress intended to authorized' agencies to bypass
district court enforcement proceedings. An efficient
and fair enforcement mechanism has been provided
and was meant to be used. NLRB v. Intern. Medica-
tion Systems, Ltd, 640 F 2d 1110, 1116 (C.A. 9,
1981).
Here, one of the parties, the Regional Director, has ar-
rogated to himself the authority to review my judicial
ruling. Thus, in my opinion, I had no choice but to
direct counsel for the General Counsel to proceed with
enforcement proceedings I find it deplorable that I
should find it necessary to remind the Regional Director
that he is but a party to this litigation. It is axiomatic that
a judge's order is to be either obeyed by parties, or sub-
jected to review by the proper authority The Regional
Director, however, evidently believes something very
different. From my vantage point it appears that he
holds the opinion that he can simply "pocket veto" the
ruling made by me, and make independent rulings upon
the same subject after demanding to receive and review
a different factual basis from the Charging Party. The
net effect of the Regional Director's failure and refusal
to proceed has been to cause the orderly progression of
this case to be stymied, working hardship and delay
upon other parties.
HYDRO CONDUIT CORP 1307
Thus, I repeat my statements to counsel for the Gener-
al Counsel that (a) having ruled that the subpoena is
valid, and (b) having heard the Respondent's refusal to
abide by my ruling, (c) it is now incumbent upon the
General Counsel to initiate proceedings in the appropri-
ate District Court so that the Charging Party may
present its arguments in support of my ruling and the
Respondent may present its arguments against my ruling,
thereby providing a basis for a ruling by the District
Court's judge as to whether or not my ruling was cor-
rect or incorrect.
At this date, some three weeks following adjournment
of the case, despite my requests of the parties to keep me
advised, I have heard nothing in support of the Regional
Director's position. I have no idea what the status of this
matter may be, or when, if ever, I may expect to sched-
ule the resumption of the hearing Such silence seems to
verge on contumacious behavior, if not of me, or the
Board, then of the order by which the Circuit Court of
Appeals remanded this case for reopening and hearing.
The Respondent's reliance upon provisions of the
Board's Casehandling Manual is clearly wrong. For Sec-
tion 11790.1 thereof states that the request of a private
party that the General Counsel initiate enforcement pro-
ceedings on a subpoena is not to be denied without the
Region's personnel first securing "clearance from Wash-
ington," and that "doubtful" cases should be administra-
tively submitted for advice Here, however, I could not
persuade counsel for the General Counsel to even inform
me what the basis of any alleged doubt might be, or how
the novelty of my ruling might be recognized; he could
only state that the Regional Director ". . . believes that
it is within [his] discretion . . . ." (Tr 885). But even if
the Regional Director's view is well founded, and based
on some yet undisclosed reason , the provisions of the
Casehandling Manual have no binding effect upon me.
They do not presume to instruct judges in the perform-
ance of their duties and, even if they did, the disclaimer
contained within them effectively nullifies any use there-
of as precedent That disclaimer reads as follows:
Purpose of Manual
This manual has been prepared by the General
Counsel of the National Labor Relations Board pur-
suant to his authority under Section 3(d) of the Act.
It is designed only to provide procedural and oper-
ational guidance for the Agency's staff in admmis-
tering the National Labor Relations Act, and is not
intended to be a compendium of substantive or pro-
cedural law, nor a substitute for a knowledge of the
law The guides are not General Counsel or Board
rulings or directives and are not a form of authority
binding upon the General Counsel or upon the
Board
Finally, I must note that the contentions set forth in
the Respondent's petition seem tantamount to a claim
that I have subjected it to unfair treatment, rising to the
level of personal bias or otherwise disqualifying me from
further participation in this matter I deem such a claim
to be unwarranted, but also note that this is not the first
instance in this matter that such claims have been ad-
vanced. As before, I direct Respondent's attention to the
provisions of Section 102.37 of the Board's Rules and
Regulations. In the event that I receive an affidavit set-
ting forth the details of the matters alleged to constitute
grounds for disqualification, I shall deal with it in due
course. In the meantime, I shall not respond further to
such accusations, whether explicitly stated or arising by
implication in some collateral matter such as this.
ACCORDINGLY , IT IS HEREBY ORDERED that:
(1) Respondent's Petition to Revoke or Quash Subpoe-
na is denied; and that
(2) the Regional Director shall show cause on or
before January 21, 1983 why:
(a) the Charging Party should not be granted leave to
proceed, itself, directly into the appropriate United
States District Court for the purpose of instituting en-
forcement proceedings; or,
(b) the complaint herein should not be dismissed; or,
(c) the case should not be transferred back to the
Board with a recommendation that it be submitted to the
Circuit Court of Appeals for consideration of the ques-
tion of whether or not the Regional Director's inaction
herein constitutes contumacious conduct.
(3) Respondent and Charging Party are hereby given
leave to state their respective positions and arguments re-
garding the questions raised in paragraph (2), above, by
filing the same with me, in writing, on or before January
21, 1983.
(4) Charging Party's Motion to Dismiss Petition to
Revoke or Quash Subpoena Duces Tecum in Whole or
in Part, is, in view of my findings and conclusions set
forth above, found to be moot. Accordingly, it is hereby
overruled.