Inland Container Corp.

National Labor Relations Board - Board Decisions

Feb 8, 1985

273 N.L.R.B. 1856 (N.L.R.B. 1985)

1856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inland Container Corporation and United Paper-
workers International Union, AFL-CIO, Local
No. 522. Case 17-CA-10772
8 February 1985
SUPPLEMENTAL DECISION ON
RECONSIDERATION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 September 1983 the National Labor Rela-
tions Board issued a Decision and Order in the
above-entitled proceeding' finding that the Re-
spondent did not, as alleged, violate Section 8(a)(1),
(3), and (5) of the National Labor Relations Act.
On 4 November 1983 United Paperworkers
International Union, AFL-CIO & CLC, Local No.
522 (the Union) filed a petition in the United States
Court of Appeals for the District of Columbia Cir-
cuit seeking review of the Board's decision. There-
after, on or about 20 August 1984 the Union filed a
"Conditional Motion . . . For Leave To Adduce
Additional Evidence." In response, the Board filed
a motion on 12 September 1984 seeking an immedi-
ate remand of the case. On 17 September 1984 the
court granted the Board's motion. In doing so the
court specifically directed "that the NIRB report
its decision on reconsideration to the court . . . ."
The court also stated in its order that "[Mending
the NLRB's reconsideration and report to the
court, in the interest of the complete and expedi-
tious final disposition of this matter, the panel shall
retain jurisdiction over the case."
The Board then invited the parties to file state-
ments of position with respect to the issues raised
on remand. The Respondent and the Union thereaf-
ter filed such statements with the Board.
The complaint in this case alleges, inter alia, that
the Respondent, in staffing its newly acquired
Kansas City, Kansas plant, unlawfully refused to
consider for hire or to hire any of the predecessor
employer's employees at that location because they
were represented by the Union. In finding no merit
to this allegation in its original decision, the Board
relied on the credited testimony of the Respond-
ent's vice president for employee relations staff
services, David Harrison, and its employee rela-
tions supervisor, Janet Dudley, that the Respond-
ent applied only the following three criteria in se-
lecting employees for hire at the Kansas City plant:
(1) a preference for high school graduates; (2) a
preference for applicants who had 2 years or more
of factory experience; and (3) an absolute prohibi-
tion against hiring any employee with previous
' 267 NLRB 1187 (1983)
boxmaking experience. Although the third criterion
eliminated from consideration all the predecessor's
employees, the Board adopted the administrative
law judge's finding that it was justified by the Re-
spondent's assertion of the "not inherently implau-
sible" business consideration that it has experienced
a considerable degree of success at other plants
where it solely hired inexperienced production and
maintenance employees. The Board ultimately dis-
missed the complaint based, inter alia, on this find-
ing.
In its statement of position the Union argues that
certain newly discovered evidence, when consid-
ered in conjunction with the preexisting record,
now establishes that a motivating factor in the Re-
spondent's decision not to hire its predecessor's em-
ployees was a desire on the Respondent's part to
avoid recognizing and bargaining with the Union.
The additional evidence the Union offers concerns
a Federal district court proceeding 2 where Janet
Dudley answered an interrogatory relating to the
Respondent's hiring policies at the Kansas City fa-
cility. Dudley stated in writing there that the Re-
spondent applied four rather than three criteria in
selecting employees for the new operation: the
three criteria set out above plus a preference for
employees with "a demonstrated willingness to
work in a nonunion environment." In addition, the
Union seeks to introduce into evidence a manual
the Respondent used in retraining its predecessor's
supervisors before operations commenced. The
Union claims that the manual demonstrates that
such training related to methods of identifying and
resisting union organizational activity.
The Respondent contends in its statement that
the Union's motion to reopen the record should be
denied on three grounds: (1) the proffered evidence
is not newly discovered in that the Union failed to
ask pertinent questions or to introduce documents
which existed at the time of the hearing; (2) the
evidence which the Union seeks to introduce bears
only on the credibility of witnesses and thus cannot
be considered under established Board and court
precedent; and (3) this evidence, even if adduced
and credited, would not require a different result
since the alleged criterion involving a willingness
to work in a nonunion plant would not apply to its
predecessor's employees who had been excluded
because they possessed boxmaking experience.
The Board, having duly considered the matter,
concludes that the disposition of the issues raised
here requires reopening the record and remanding
2 Baker v Inland Container Corp, No 83-2341 (D Kansas), which was
brought under the Age Discrimination in Employment Act by applicants
who were rejected for hire at the Kansas City location because of the
Respondent's no-experience criterion
273 NLRB No. 226
INLAND CONTAINER CORP 1857
the case for further hearing before the administra-
tive law judge. However, we recommend limiting
the proposed hearing to the taking of additional
evidence concerning what impact Janet Dudley's
answer to the interrogatory might have on this
proceeding. While the Union also seeks to intro-
duce into evidence the Respondent's training
manual, this document clearly was in existence at
the time of the original hearing and there is no
showing that it was concealed from the Union. We
therefore conclude that the training manual does
not constitute newly discovered evidence under
Section 102.48(d)(1) of the Board's Rules and Reg-
ulations and that further hearing on this point thus
is unjustified .3
In making our report to the court, we specifical-
ly reject the Respondent's argument that Dudley's
answer to the interrogatory does not also constitute
newly discovered evidence. The record evidence in
this case discloses that Dudley, when asked at the
hearing how she went about securing the work
force at the Kansas City location, testified that she
simply applied the three criteria which the Board
previously considered in deciding this case. Based
on Dudley's precise testimony there, we cannot
fault the Union for failing to adduce the alleged
fourth criterion from Dudley as the Respondent
would have it.
The Respondent further contends, as noted, that
the record should not be reopened because the
proffered evidence bears only on the credibility of
witnesses. Although courts have held that "newly
discovered evidence, the effect of which is merely
to discredit, contradict or impeach a witness, does
not afford a basis for the granting of new trial,"4
the present case raises a substantial question wheth-
er a key witness or witnesses may have committed
perjury in testifying regarding a material fact. No
tribunal can disregard allegations of this kind.5
Finally, we also find no merit to the Respond-
ent's contention that further hearing is unwarranted
because the proffered evidence would not require
the Board to reach a different result on the merits.
Since the Board relied on the evidence of the Re-
spondent's hiring criteria in its prior dismissal of
the complaint, we conclude that m the circum-
stances here the Union should be afforded the op-
3 K-C Machine & Tool Co, 268 NLRB 1474 fn 3 (1984)
4 See NLRB v Sunrise Lumber Corp. 241 F 2d 620, 625, 626 (2d Or
1957)
5 See, e g, Electrical Workers IUE Local 795 (National Electric Coil),
268 NLRB 308 (1983), Northern States Beef 234 NLRB 921 (1978)
portunity to present additional evidence on this
point.
In light of the above, the Board recommends to
the District of Columbia Circuit Court that the dis-
position of the issues raised here requires reopening
the record and remanding the case for further hear-
ing before the judge for the purpose of taking addi-
tional evidence necessary to decide what impact, if
any, Dudley's answer to the interrogatory should
have on this proceeding.6
MEMBER DENNIS, dissenting.
Contrary to the majority, I do not believe that
the court of appeals intended the Board to use the
cumbersome and novel procedure of issuing a
"report to the court."
The Board filed a motion with the court to
remand this case because of newly discovered evi-
dence bearing on the credibility of witnesses. The
court issued an order that granted the Board's
motion and remanded the record, thereby authoriz-
ing the Board to reopen the record and receive the
evidence. See Section 10(e) of the Act.' The court,
conscious of administrative delay, set a date certain
for the Board to issue its decision and retained ju-
risdiction over the case "in the interest of the com-
plete and expeditious final disposition of this
matter." Consistent with our representations to the
court and the terms of the court's order, including
its emphasis on a speedy resolution of this proceed-
ing, I would issue an order reopening the record
and remanding the case to the judge who heard the
testimony to consider the effect of the newly dis-
covered evidence.2
6 We believe there are issues in this case that can only be resolved
after further hearing and we do not believe in the unique circumstances
present here that the Board has authority to remand this case without the
court's prior approval The Board in its motion to the court specifically
requested "an immediate remand of this case so that the Board may
regain jurisdiction to reopen the record " In granting the Board's
motion, however, the court directed that "[Mending the NLRB's recon-
sideration and report to the court the panel shall retain jurisdiction
over the case" Thus, based on our reading of this directive, we find that
the Board is precluded from directly remanding this case to the judge
Rather, we conclude that the Board, in accordance with the court's
order, must issue this "Report" by a date certain for the court's consider-
ation setting out recommendations on the issues raised in the conditional
motion for leave to adduce additional evidence
Indeed, the Board's motion explicitly requested "an immediate
remand of this case to the Board pursuant to Section 10(e) of the Act, 29
U S C 160(e), so that the Board may regain jurisdiction to reopen the
record and reconsider its decision in light of the evidence now tendered
by the Union"
2 I would also leave the issue of the admissibility of the training
manual initially to the judge