Local 259, United Automobile, Aerospace And Agricultural Implement Workers Of America(Atherton Cadillac, Inc )

National Labor Relations Board - Board Decisions

Sep 23, 1985

276 N.L.R.B. 276 (N.L.R.B. 1985)

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 259, United Automobile , Aerospace and Agri
cultural Implement Workers of America (Ather
ton Cadillac , Inc) and Anthony Dazzo Case
29-CB-2130
23 September 1985
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 24 July 1984 Administrative Law Judge
Robert M Schwarzbart issued the attached supple
mental decision The Respondent, the Charging
Party, and the General Counsel filed exceptions
and supporting briefs, and the Charging Party and
the General Counsel filed answering briefs
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
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 1 and
conclusions2 and to adopt the recommended
Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the motions filed by the Re
spondent, Local 259, United Automobile, Aero
space and Agricultural Implement Workers of
America to vacate the Board s Decision and Order
dated 30 June 1976 225 NLRB 421 to dismiss the
complaint or to vacate the award of backpay to
Anthony Dazzo are denied
' The Respondent and the Charging Party have excepted to some of
the judge s credibility findings The Board s established policy is not to
overrule an administrative law judge s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
2 In adopting the judge s decision we emphasize that the burden of
proving that G C Exh 3 is a forgery or had been altered by Dazzo is on
the Respondent as the moving party We agree with the judge that the
Respondent has not sustained that burden
Lauren Rich Esq of Brooklyn New York for the Gen
eral Counsel
Jerome Tauber Vicki Erenstem and Elmer Beberfall
Esqs (Sipser Weinstock Harper Dorn & Liebowitz) of
New York New York for the Respondent Union
William J Crossin Esq (Crossin & Crossm) of Larch
mont New York for the Charging Party
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT M SCHWARZBART Administrative Law
Judge This case was heard in Booklyn and Manhattan
New York between May 5 1980 and March 2 1983
pursuant to an order of the National Labor Relations
Board (the Board) dated October 31 1979 reopening
record and remanding proceeding to the Regional Direc
for for further hearing 1 The Board s remand order was
issued pursuant to an order of the U S Court of Appeals
for the Second Circuit entered July 13 1979 2 where the
court vacated its 1977 judgment enforcing the Board s
decision and order and remanded the case to the Board
with directions to reopen the record for the purpose of
adducing evidence with respect to the authenticity of
General Counsel s Exhibit 33 and determining whether in
light of such evidence the Board s order dated June 30
1976 should stand or be vacated
In this supplemental proceeding Local 259 United
Automobile Aerospace and Agricultural Implement
Workers of America (the Respondent or Union) asserts
that at the original hearing in December 1975 the Gen
eral Counsel in introducing General Counsels Exhibit 3
in evidence knowingly introduced a forged document
into the record and suppressed information in the Re
gional Offices files concerning that documents authen
ticity This letter as noted was introduced through the
authenticating testimony of Charging Party Dazzo
rather than through the testimony of Atherton The
Union contends that if it had had information questioning
the documents authenticity rhat was then in the posses
sion of the General Counsel it could have countered by
calling Atherton as its witness at the hearing The Re
spondent Union therefore argues that the Board s find
mg that it violated Section 8(b)(1)(B) of the Act by
causing the Company to terminate Dazzo should be set
aside and vacated on grounds that (1) the General Coun
sel s use of General Counsel s Exhibit 3 in evidence al
though then aware that the document had been forged
tainted the entire proceeding 4 (2) Dazzo having ob
tamed introduction of the exhibit over the reservations of
the General Counsel then perjured himself both at the
initial hearing and here by testifying falsely as to its au
thenticity and the circumstances under which it was pre
' The original decision in this matter was reported at 225 NLRB 421
(1976) enfd 562 F 2d 38 (2d Ctr 1977) art denied 434 US 1011
(1978)
2 No 77-4019 (unpublished)
G C Exh 3 received in evidence over objection at the original hear
mg purports to be a letter of recommendation dated February 14 1975
on behalf of the Charging Party Anthony Dazzo signed by Richard C
Atherton president of Atherton Cadillac Inc (the Company) who on
February 11 had discharged Dazzo from his position as general service
manager at the Company s automobile dealership As found by the
Board this termination was in violation of Sec 8(b)(IXB ) of the Act
The letter which will be set forth below explains Dazzo s er mination in
terms damaging to the Union When introduced the letter was authenti
cated by Dazzo the claimed recipient rather than by Atherton the as
serted originator The letter s authenticity and related questions concern
mg its use and treatment by the General Counsel are the issues of this
proceeding
4 The Board in concluding that the Act had been violated expressly
dtsclaimea reliance on G C Exh 3 as hearsay
276 NLRB No 30
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
pared and received; (3) the complaint should be dis-
missed in the context of the foregoing as the Respondent
initially was denied a fair hearing because of the General
Counsel's failure to introduce General Counsel's Exhibit
3 through Atherton, or to disclose exculpatory material,
and as a fair hearing is no longer possible because Ather-
ton is not available as a witness;5 or (4) that Dazzo, in
any event, should not be awarded backpay because of his
misconduct in connection with this proceeding.
The General Counsel and the Charging Party assert
that the Board's original decision in this matter should
stand, as General Counsel's Exhibit 3, in fact, is authen-
tic; that there were valid reasons at the time to support
their good-faith belief to that effect; and that Dazzo ac-
tually had received the disputed letter in the mails as
represented-by him. The General Counsel further con-
tends that the Board's general rule is to not disclose ex-
culpatory material from Regional Office files and that
the present situation does- not differ from other cases
where that rule has been applied, although the General
Counsel was aware of evidential conflicts. In the context
of reasons for good-faith belief in-the exhibit's authentici-
ty, existing precedent against disclosing exculpatory evi-
dence, and the prohibition placed on disclosing the con-
tents of the Regional Office's investigatory files by Sec-
tion 102.118 of the Board's Rules and Regulations,6 the
General Counsel argues that it was under no obligation
to disclose to the union evidence in its possession that
might tend to negate General Counsel's Exhibit 3's au-
thenticity
All parties appeared at the hearing represented by
counsel, were given the opportunity to be heard" to
present evidence,' to examine and cross-examine wit-
nesses , and to file briefs. Briefs, thereafter filed by the
General Counsel, the Respondent, and the Charging
Party, have been carefully considered.
On the entire record, the briefs of the parties, and my
observation of the witnesses, I make the following
5 Atherton passed away in early January .1980 before the start of the
supplementary hearing
6 The relevant provisions of Sec 102 118 are attached as an Appendix
to this decision [omitted from publication]
7 In connection with and before the start of the supplemental hearing,
the General Counsel granted written , permission under Sec 102 118 of
the Rules and Regulations for the production and examination of ger-
mane documents from the Regional Office's files At the request of the
General Counsel, irrelevant passages were excised in camera prior to
their production at the heanng The General Counsel also allowed the
testimony of two former Board attorneys who had been employed at
Region 29 in 1975 and involved in this matter at the time-Marguerite A
Smith , who had conducted the prehearing investigation , and Harold R
Weinrich , who appeared as counsel for the General Counsel at the De-
cember 1975 hearing Both Smith and Weinrich completed their testimo-
ny only under grants of immunity afforded pursuant to Sec 102 31(c) of
the Rules and Regulations Sec 102 31(c), in relevant part, establishes a
procedure whereby, with the approval of the Attorney General of the
United States , the Board may require any individual to testify or provide
other information at any of its proceedings if, in the Board's judgment,
(1) the individual 's testimony or information may be necessary to the
public interest , and (2) the individual has refused to cooperate on the
basis of privilege against self-incrimination
The Board , granting the Respondent 's interlocutory appeal , also specif-
ically permitted testimony by Weinrich and Smith concerning discussions
between themselves and with other Regional . Office personnel concerning
the authenticity and use of G C. Exh 3 in evidence
277
FINDINGS OF FACT
A. Background
1. The Board's decision
On June 30, 1976, the Board issued its above-cited de-
cision in this matter8 where, overruling Administrative
Law Judge Alvin Lieberman, it found that the Respond-
ent Union had violated Section 8(b)(1)(B) of the Act by
restraining and coercing the Employer9 in the selection
of Dazzo. 10
Dazzo had begun to work for the Employer in 1965 as
a mechanic and, by 1971 or 1972, had advanced to his
aforesaid managerial position as the Company's repre-
sentative in the adjustment of grievances. In short, the
'Board, relying on circumstantial evidence, found that the
Union had unlawfully caused the Company to fire
Dazzo." In the period before the January 17, 197512
representation election through which the Respondent
Union obtained certification as bargaining representative,
Dazzo, it was found, had laid off several employees, in-
cluding a member of the Union's organizing committee,
and had announced to employees that there would be
more layoffs in the future and that the Employer intend-
ed to reduce employees' wages. Union Representatives
Steve Elliot and Louis Salvatore unsuccessfully protested
this conduct to the Company's president, Richard C.
Atherton, who indicated that the business was suffering
losses and that Dazzo was in full charge of the shop.
Other frictions also developed between Dazzo and the
employees. During contract negotiations in January and
February, which began after the Respondent Union was
certified, the Union stood firm on its proposals and on its
request that previously laid-off employees be recalled.
The Union did not modify the proposals it had submitted
during the first negotiating session until the final meet-
ing At a February session , a union representative ex-
plained that the Union had refused to soften its negotiat-
ing position because "your manager is making things
tough, harassing the committee; this is why the men are
not being flexible and why they want the contract terms
that have been proposed."
At the February 11 session , after being informed that
the Union was standing firm on its wage proposals and
was threatening strike action, the Employer adjourned
the meeting for 30 minutes and then announced that
Dazzo had been discharged. Among factors relied on by
the Board in finding that Dazzo's discharge was violative
of Section 8(b)(1)(B) of the Act were the Union's will-
ingness , shortly after learning of Dazzo's termination, to
8 The charge and complaint were dated May 7 and July 31, 1975, re-
spectively
9 As noted, the Company is engaged in the retail sale and servicing of
automobiles at its West Islip, New York facility
i° As service manager, Dazzo had been responsible for overall super-
vision of the Employer's service department He hired , fired , and disci-
plined employees, and scheduled and oversaw the quality of work He
also discussed and settled grievances with the shop steward According-
ly, the Board, in agreement with Judge Lieberman, found that Dazzo had
been a representative of the Employer for the adjustment of grievances
within the meaning of Sec 8(b)(1)(B)
i i See 225 NLRB at 422, supra
12 All dates hereinafter are within 1975 unless stated to be otherwise
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially ease its bargaining demands its agreement
to negotiate beyond and to defer the March 1 strike
deadline and a major change in union bargaining strate
gy The Board noting that agreement on a contract was
reached on March 3 also cited other factors in support
of its findings However the Board and Judge Lieber
man in reaching their separate conclusions concerning
violation expressly disclaimed reliance either on Dazzo s
testimony concerning a conversation he had with Ather
ton following his discharge where the reason for same
assertedly was told to him or on General Counsels Ex
hibit 3 Atherton s disputed letter of recommendation of
fered to corroborate this testimony Judge Lieberman at
427 described that part of the record as follows
The direct evidence adduced by the General
Counsel to show that Respondent exerted restraint
or coercion to compel Cadillac to terminate
Dazzo s employment before it would make bargain
ing concessions or agree upon a contract consists of
Dazzo s testimony and the letter22 signed by Rich
and Atherton Sr Cadillac s president Concerning
the former Dazzo testified as above set forth that
he was told by Atherton Sr that Respondent s
agents demanded that he be discharged and unless
Cadillac complied Respondent would not enter into
a contract with Cadillac and would strike The
letter it will be remembered sets forth that Dazzo
became the focal point of [a union] dispute and
that to avoid a strike Dazzo was reliev[ed] of his
duties
The testimony given by Dazzo concerning what
he was told by Atherton Sr as to what the latter
was informed by Respondents agents regarding
their demand for Dazzo s discharge is clearly hear
say This being so it has no probative value There
fore it cannot alone form the basis for a finding
that Respondent violated Section 8(b)(1)(B) of the
Act
In apparent recognition of this precept the Gen
era] Counsel sought to corroborate Dazzo s testimo
ny by the letter signed by Atherton Sr The diffi
culty with this position is that the letter purporting
to set forth Respondents attitude toward Dazzo s
continued employment by Cadillac like Dazzo s
testimony and for similar reasons is also hearsay
Accordingly the letter being itself hearsay cannot
be availed of to corroborate Dazzo s testimony
which also suffers from that infirmity
Corroboration of Dazzo s testimony could have
been obtained from Atherton Sr who presumably
would have had first hand knowledge of Respond
ent s demand for Dazzo s discharge as the price of
avoiding a strike against Cadillac and as the quid
pro quo for a contract if such a demand actually
had been made Yet without explanation the Gen
eral Counsel failed to call Atherton Sr as a wit
ness His failure to do so raises the inference which
I draw that had this been done Atherton Sr
would not only not have corroborated Dazzo s
story but would have given testimony favorable to
Respondent
Yz G C Exh 3
General Counsels Exhibit 3 the letter in controversy
dated February 14 is typed on the letterhead of Ather
ton Cadillac Inc and is as follows
To Whom It May Concern
This is to inform you that Anthony Dazzo was
dismissed from the firm of Atherton Cadillac Inc
on February 11 1975
Mr Dazzo had been in our employment since
1965 and rose to the position of General Service
Manager During this time his work was beyond
question and exemplary
Unfortunately a Union dispute arose and to
avoid a strike Mr Dazzo became the focal point of
the dispute that made it necessary to relieve Mr
Dazzo of his duties
I recommended him highly to any future employ
er
Yours very truly
ATHERTON CADILLAC INC
/s/ RICHARD C ATHERTON
President
RCA ss
As to the above quoted part of Judge Lieberman s de
cision the Board held as follows 113
The Administrative Law Judge found that the
General Counsels failure to call Atherton Sr as a
witness to corroborate Dazzo s hearsay testimony as
to the reason for his discharge raises the adverse in
ference that Atherton Sr would not corroborate
Dazzo s testimony and would have given testimony
favorable to Respondent He also refused to consid
er the letter of reference allegedly written by Ath
erton Sr as corroboration because the letter itself
is hearsay We agree as to the hearsay nature of
Dazzo s testimony and of the letter however we
find the adverse inference is improper here since
Atherton Sr is clearly a witness equally available
to both parties 14
As noted the Board s finding that the Respondent
Union had violated Section 8(b)(1)(B) of the Act with re
spect to Dazzo s discharge originally was enforced by
'a 225 NLRB at 422 fn 3 supra
14 As the July 23 charge filed against the Company by Dazzo in Case
29-CA-4476 alleging that the Employer had discharged him in violation
of Sec 8(axl) and (3) of the Act was dismissed on August 29 by the
Regional Director on the ground that Dazzo was a supervisor there
were no outstanding charges against the Company by the time of the
hearing in December Accordingly the Board considered Atherton to be
neutral and equally available as a witness to the respective parties The
Respondent Union on the other hand now contends that if the General
Counsel had not suppressed evidence concerning G C Exh 3 Atherton
would have been called at the original hearing as a Respondents witness
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
the US Court of Appeals for the Second Circuit and
certiorari was denied 15
2 How the current authenticity controversy arose
After the Board and the court found that he had been
terminated under unlawful circumstances Dazzo in De
cember 1977 brought state court action in New York
against the Respondent Union the Company and Ather
ton personally for damages in connection with his ter
mination While this lawsuit was pending counsel for the
Employer notified union counsel that there was a ques
tion as to the authenticity of General Counsels Exhibit
3 the letter of recommendation received in evidence in
the Board proceeding
Based on this information in 1978 the Respondent
Union began a series of motions to have the judgments
of the Board and the court vacated The Unions first
such motion to the Board dated June 30 1978 was sup
ported among other things by an affidavit dated May
31 1978 from Atherton that is his only sworn statement
as to the authenticity of General Counsel s Exhibit 3
This affidavit in relevant part declares
2 On August 8 1975 Marguerite Smith Esq an
attorney from the National Labor Relations Board
visited Atherton Cadillac Inc to interview myself
and other employees in connection with the facts
surrounding Mr Dazzo s dismissal
3 In the course of her investigation she asked
many questions one of them concerning a letter
purportedly written by myself to Mr Dazzo relat
ing to his dismissal a copy of which is annexed as
Exhibit 1 16
4 I advised her that although the signature
looked like my signature I had no recollection of
signing such a letter
5 While Ms Smith continued to investigate on
that day I caused each of the typewriters at Ather
ton Cadillac Inc to be checked to attempt to ascer
tarn whether or not the letter had been typed at the
Company to further explore the provenance of the
letter
6 Annexed as Exhibit 2 is a copy of such tests
which I have found are still in my file which test
Ms Smith was shown at such time
7 Ms Smith when she prepared the affidavit
which I signed advised that she was omitting all
reference to the letter because of the confusion sur
rounding it 1
15 See fn I above
19 The letter annexed to Atherton s affidavit as Exh I is a photocopy
of G C Exh 3 quoted above
17 Smith in her testimony contradicted the reason in Atherton s affi
davit as to why no reference to G C Exh 3 was included in the mvesti
gatory affidavit she took from Atherton on August 8 Smith related that
Atherton at the time had been cautious as a representative of a charged
party then under investigation The charge against the Company that she
was looking into that day was not dismissed until the end of that month
Atherton who had met with Smith while accompanied by counsel had
agreed to give an affidavit only as to Dazzo s supervisory status while
with the Company
279
The Board by order of September 29 1978 denied
the Respondent Union s contested motion to set aside
Board order and to reopen the hearing as lacking merit
The Respondent Union s motion to the Board for re
consideration of its prior ruling in important part was
based on an investigatory file note handwritten by Smith
concerning her August 8 interview with Atherton
which had been furnished to the Union by the Regional
Director from the Regional Office files on September 22
1978 The file note indicated in abbreviated form that the
Company had refused to give evidence on termination of
the Charging Party (Dazzo) who had played a role in
the Company s (preelection) campaign and continued as
follows 18
* Letter offered by CP (Charging Party) to show
Eer s (Employer s) mood at t termina (time of ter
nimation)
Eer recalls directing that a letter be typed
¶ s (Paragraphs) 1 & 2 are standard for dismis
sal
(3) -
Eer finds language atypical doesn t think wld
(would) write a) this thought b) this language
Letter concededly possibly typed on typewriter
normally used by a typist at Atherton ss (Sharon
Spmacchia)
typist says she recalls instruction to type letter for
Dazzo but doesn t recall contents (refer to file 29-
CB-2130 )19
In what apparently was a different pen from that used
for the above paragraphs Smith concluded her file note
as follows
Employers basic position is that letter is a for
gery-or a copy of letter executed by Employer
with an addition [sic] paragraph inserted by Dazzo
w/out Eer s knowledge or consent 20
By order dated March 6 1979 the Board denied the
Respondents motion for reconsideration on the ground
that as the U S Court of Appeals for the Second Circuit
had entered a judgment enforcing as modified the
Board s original 1976 decision and order under Section
10(e) of the Act 21 the Board no longer had jurisdiction
The Respondents motion of March 27 1979 to the
court of appeals to vacate its judgment and to set aside
the Board s order or in the alternative to remand this
matter to the Board as noted was granted in that the
18 For clarification abbreviated words and symbols in Smiths file note
are spelled out in the accompanying parenthesized inserts reflecting her
interpretation of the note at the hearing The reference to Sharon Spuuc
chin misspelled in the memorandum was to the Company s former Glen
cal employee whose identifying initials appear in the lower left corner of
G C Exh 3 next to Atherton s as its purported typist
19 The cross reference to Case 29-CB-2130 could mean that Smith s
fide note originally was stored in the file of the related dismissed case
against the Company Smith investigated the charges in both cases
PO There is no showing that Atherton had read signed initialed or in
any way adopted Smith s file note
91 Sec 10(e) of the Act provides that upon the filling of the record in
court the jurisdiction of the Court shall be exclusive and its judgment
and decree shall be final subject to review by the Supreme Court
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
court, on July 13, 1979, vacated its judgment and re-
manded the matter to the Board "with directions to
reopen the record for the purpose of adducing evidence
with respect to the authenticity of General Counsel's'Ex-
hibit 3 and determining whether in the light of such evi-
dence, the Board's order, dated June 30, 1976, should
stand or be vacated."
Also, as noted, the Board's order of October 31, 1979,
establishing this hearing conformed to that of the court
and postdated the Respondent's contested motion, filed
October 26, 1979, to set aside Board order and dismiss or
further reopen the record.
B. The Respondent's Evidence of Forgery
1. The testimony of Atherton's former associates
The Respondent called several witnesses who were
with the Company in 1975, including Grace Kent, then
the Company's office manager; Sharon Spinicchia Shau-
del, who then did the typing; and Richard A. Atherton
Jr. (Atherton Jr.),22 who collectively testified that they
personally were unfamiliar with G.C. Exh. 3 As related
by Kent and Atherton Jr., Atherton, too, had been per-
plexed by the letter which he could not recall having
signed , and which did not appear to have been typed in
the normal course of business in that it did not conform
to Atherton's standards for neatness,23 and as no file
copy could be located.
a. Grace Kent and Sharon Spinicchia Shaudel
Grace Kent24 testified that in 1975 Sharon Spinic-
chia25 typed Atherton's correspondence. Atherton's
practice was to write his letters, including those of • rec-
ommendation , in -longhand on yellow legal pads, give
them to Kent who, in turn, would assign Shaudel to type
them. In that year, ,of all company office personnel, only
Shaudel, then still Spinicchia, had the initials "ss ," which
appeared next to Atherton 's initials in the lower left
corner of General Counsel's Exhibit 3. Shaudel was the
sole employee to type Atherton's correspondence.
Others would perform this service only in her absence.:
When Shaudel typed a letter for Atherton, which she
would do on an average of two or three times a week,
22 Richard A Atherton Jr is the son of Richard C Atherton who, as
noted , died before the start of this hearing Atherton Jr and his brother-
in-law , Douglas Jean, continue to operate the Company under its present
name, Atherton -Jean Cadillac, Inc
23 G C Exh 3 is poorly typed with about eight visible corrections,
including one character that was inked over by .pen Kent and Shaudel
also were critical of the margin settings
24 Kent, employed elsewhere at the time of the heanng, was Atherton
Cadillac's office manager, controller , and corporate secretary from 1967
to 1978 . During that period , her duties remained the same She was in
charge of all office procedures , including bookkeeping , clerical work, and
maintenance of personnel files Kent was not a member of the Union A
union other than the Respondent represents employees at her current
place of employment
25 Spinicchia was employed by the Company from 1972 until her ter-
mination on work-related grounds in 1977 In •1975, she was the billing
clerk, did all the typing, answered the telephone switchboard , and took
in money at the window Spinicchia reported to Kent In May 1976,
Spinicchia assumed the name of Shaudel upon her marriage to a compa-
ny shop employee At the time of the hearing, neither Shaudel nor her
husband was employed by the Company or was a member of the Re-
spondent Union
she dated it as of the day she worked on it,'typed in her
initials at the lower left corner next to those of Atherton,
and, on completion, gave it to Kent to proofread and
submit to'Atherton. In Kent's absence, Shaudel would
proofread the letter herself and give it directly to Ather-
ton together with his handwritten draft. After doing this,
Shaudel's involvement ended., Atherton would photo-
copy and mail his own correspondence, using a postage
meter in, the Company's office. Both Kent and Shaudel
put letters into personnel files. -
Kent recalled that she wrote Dazzo's last payroll re-
ceipt and paycheck, for the payroll period ending Febru-
ary 1326. at Atherton's request after Atherton had told
her he had -terminated Dazzo. As directed by Atherton,
the check she prepared included 4-weeks' pay and 1-1/2
weeks' vacation.- Although in normal course Kent would
have mailed these items to Dazzo,. she does not recall
what she did with them.27
In August, Atherton. showed Kent a photocopy of
General Counsel's Exhibt-3 and asked if she had any
knowledge of the document.28 He told Kent that al-
though someone from the Labor. Board had come to the
office, had taken testimony from him, and had given him
a copy of this letter, he had no recollection of having
signed it. He asked whether she had done so,29 or if she
had seen the letter. When Kent said she. had not, Ather-
ton asked if she had written the letter. ent said she had
not. Atherton then told her that he did not remember
writing or signing the letter. He asked Kent if she had
signed it as their handwriting at times could look alike.
Kent repeated that she had never typed, signed, or seen
the letter. In answer to Atherton's next question, Kent
25 Dazzo was terminated on February 11.
27 A question was raised here as to whether G C Exh 3 was intro-
duced at the initial hearing together with-the envelope in which it actual-
ly had been received or whether that envelope had contained only
Dazzo's last check The Respondent has presented credibility issues con-
cerning the sequence in which, or whether, in fact, Dazzo received G C
Exh 3 from the Company following his discharge
28 The Charging -Party has objected to evidence of conversations be-
tween various Respondent's witnesses and Atherton, since the latter was
deceased at the time of the hearing Contrary to the Charging Party, a
witness' conversation with a decedent is admissible although subject to
careful evaluation See Consolidated Dress Carriers, 259 NLRB 627, 632
fn 14 (1981), Calandra Photo, Inc, 151 NLRB 660, 671 (1965) Here, the
testimony of Kent, and as will, be discussed, that of Shaudel, and Ather-
ton Jr , concerning their conversations with Atherton about G C Exh 3,
is mutually consistent and in general conformity with Atherton's above-
quoted affidavit of May 1978, his only sworn statement concerning the
authenticity of the disputed document; to which the Charging Party also
objects Accordingly, the testimony of these witnesses and, also, the affi-
davit will be considered in reaching a determination in this matter See
Administrative Law Judge Holmes' Board-approved' analysis in Doral
Building Service, 266 NLRB 1215 (1983), on the admissibility of a dece-
dent's affidavit in an investigatory hearing, although not made in antici-
pation of deeth Also see United Sanitation Services, 262 NLRB 1369,
1374-76 (1982) Cf Industrial, Waste Service, 268 NLRB 1180 (1984), al-
though admitted, was afforded no weight Unlike the present matter, the
proponent of the affidavit in Industrial Waste Service did not-meet the
burden of establishing that the affidavit was reliable as consistent with ex-
traneous, objective, and unquestionable facts Here, Atherton's May 1978
affidavit was made in an atmosphere friendly to himself, was independ-
ently corroborated as to substance-by Kent and Atherton Jr, and was
prepared for formal submission to the Board and court of appeals to have
existing judgments vacated -
'28 Although Kent had had authority to sign checks for Atherton in his
absence, she always did so using her own name and not Atherton's
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
said that she did not think that Sharon Spinicchia had
typed the letter. As Kent recalled, Atherton did not spe-
cifically deny that it was his signature on General Coun-
sel's Exhibit 3, but merely had said that he did not re-
member wasting or signing the letter.
In-accordance with Atherton's direction to check her
files, Kent did so and later reported to him that there
was no record of the letter.
Kent testified that Atherton had written out "quite a
few" letters of recommendation, all of which he had
brought in to be typed at the office. Although Kent testi-
fied that Atherton knew how to type, in her view he
never would have typed letters of recommendation him-
self.
Kent and Shaudel testified that General Counsel's Ex-
hibit 3 would not have gone out of their office because it
had too many errors corrected by typeovers. Also, a
typed character had been inked over in one place, and
the margins were insufficiently wide. 30 Both witnesses
related that Atherton and Kent had required that letters
leaving the office have standard margins and be neatly
typed.
Kent and Shaudel also . denied having previously
typed, . or even having seen , the following note, dated
February 18, also on company stationery, which Dazzo
now contends he received in the same envelope as Gen-
eral Counsel's Exhibit 3: "Dear Tony, Mr. Atherton
asked me to 'type a little note and ask you to please
return your keys.31 Enclosed is the letter I guess you've
been waiting for.. Take care. Sharon."32
Kent, who related that she frequently had seen and
could recognize Atherton' s signature , thought that the
signature on General Counsel's Exhibit 3 looked like his
except for the last name. However, she also expressed
the same view with respect to an affidavit unquestion-
ably signed by Atherton, thereby somewhat neutralizing
that part of her testimony.
Sharon Shaudel, although the only clerical employee
at Atherton Cadillac with initials matching those on
General Counsel's Exhibit 3, denied that she had typed
that letter and, as noted, also denied any involvement or
knowledge of the February 18 note to Dazzo, quoted
above, where her first name was typed in the place of
signature.
b. Shaudel and Laurie Samara
Shaudel related that she first saw General Counsel's
Exhibit 3 when it was shown to, her by Steve Elliott,
staff organizer for the Respondent Union, on June 20,
1978, at a restaurant lunch in Amityville, New York, ar-
so The record reveals that the Company's stationery was readily acces-
sible. .
91 After leaving Atherton's employ, Dazzo had retained his keys to the
Company's premises and the company -owned automobile he had been
using He later returned both , giving back the automobile in March after
receiving a written request from the Company Dazzo's explanation for
surrendering the car late was his sense that the Company owed him the
courtesy of a period of additional usage after 10 years of faithful service
and unwarranted discharge Dazzo also pointed out that Atherton had
seen him use the car without protest when they met for a lunch talk
shortly after the discharge
32 The name "Sharon" was typed in at the bottom of the otherwise
unsigned note `
281
ranged at Elliot's request by Laurie Samara.33 Samara, a
company employee who earlier had worked there with
Shaudel, also attended that meeting.
At the restaurant, Elliot showed Shaudel a photocopy
of General Counsel's Exhibit 3 and asked if he had seen
it before. She told him that she was certain she had not
because, before reading that letter, she had not known
why Dazzo had been let go.34 Shaudel also told Elliot
that if Atherton was going to give someone a letter of
recommendation, he would not have wanted to tell
others why the man he was trying to recommend had
been fired. Elliot informed Shaudel that the case had
been going on since 1975 and that if he needed her, he
would get in touch with hei .35
Shaudel and Samara next met with Elliot at the same
restaurant in April 1980, just 2 weeks before the start of
the present hearing. Lou Salvatore, another official of
the Respondent, also was present. Elliot again produced
the letter. He explained that the case was coming up,
that both women would be subpoenaed, and that he
wanted to review what had been said when they were
last together in June 1978. Shaudel again answered El-
liot's questions, stating, at first, that she did not remem-
ber typing the letter, and then, with more certainty, that
she had not typed the letter because there were too
many visible errors and corrections and the letter was in-
correctly marginated.
Elliot. then brought forth his own previously prepared
affidavit of what had occurred at their June 1978 meet-
ing. He asked both Shaudel and Samara to read and,
also, to sign the statement if it appeared correct to them.
Both complied.
Shaudel denied, having discussed Dazzo's discharge
with Atherton in July or August 1975, while the Region-
al Office investigation was in progress, and could not
recall whether either Kent or Atherton had spoken to
her about a letter of recommendation for Dazzo. She
was not aware that a Board agent had come to the Com-
pany's premises to look into Dazzo's charges concerning
his termination. Contrary to former Board agent Smith's
above-quoted file note of her August 8 interview with
33 Samara, who had started her employment with the Company in a
bargaining unit shop position where she became a union member, had
identified Shaudel to Elliot when he had asked her if anyone had been
working in the office with the initials "SS " Elliott, at the time, was look-
ing for evidence countering G C Exh 3's authenticity that the Union
could use to try to have the Board 's decision set aside Samara told Elliot
that Shaudel no longer worked for Atherton but, at his request, she locat-
ed Shaudel and arranged for the June 20 restaurant meeting At the time
of the hearing, Samara was still employed by the Company.
Shaudel had known Elliot since December 1974 or January 1975, when
the Union became bargaining representative of Atherton Cadillac's shop
employees, and had worked with Samara at the Company for about a
year
34 Shaudel insisted that although she had learned of Dazzo's discharge
the day after it occurred, she had not known why until some 3 years
later when shown G.C. Exh 3 Shaudel maintained that it took her that
long to learn the reasons for Dazzo 's departure although she had had a
friendly relationship with him at the office and, on one occasion , had ba-
bysat for the Dazzo family.
35 Samara, who joined the Company in 1976, had not yet been em-
ployed when Dazzo was terminated , said nothing at the meeting. Except
for reporting that Shaudel had said at the time that the margins on G C.
Exh 3 were too wide, when, in'fact, Shaudel's testimony was that they
were too narrow , Samara generally corroborated Shaudel's testimony
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atherton Shaudel did not believe that she had spoken
with anyone from the Regional Office on this matter
She also did not think the General Counsels Exhibit 3
signature was Atherton s
c Richard A Atherton Jr
Richard A Atherton Jr testified that he was not
present during the interview between his father and the
Board agent on August 8
On August 9 the day after Smith s visit Atherton Jr s
father showed him a photocopy of General Counsel s
Exhibit 3 and asked him to read it declaring that it did
not look like a letter he would waste Atherton Jr
agreed explaining that the letter was not in the style his
father normally would have used and that it had not
looked to him like his fathers signature Atherton told
his son that although the signature looked like his he did
not remember signing or writing such a letter and that
he was going to search the office files for a copy
About a month later Atherton told Atherton Jr that
he had looked for a file copy of the letter but had been
unable to find one
2 The testimony of the investigating Board agent
Marguerite A Smith36 testified that in 1975 while a
law clerk on the staff of Region 29 in Brooklyn New
York she was assigned to investigate the two respective
charges Dazzo had filed against the Umon in the present
case and in Case 29-CA-4476 against the Company 37
As noted the charge against the Company alleging vio
lation of Section 8(a)(1) and (3) of the Act filed July 23
was dismissed on August 29 when it was determined that
Dazzo had been a supervisor with the Company and
therefore not entitled to the 8(a)(1) and (3) protections
afforded employees However on August 8 when Smith
interviewed Atherton the charge against Atherton s
company was still outstanding Accordingly when Atli
erton met with Smith he was accompanied by his attor
ney and proceeded as a representative of a charged party
under investigation At the time the complaint in the
present matter against the Union was already outstand
ing, having been issued on July 31
According to Smith at their August 8 meeting Ather
ton in consultation with his attorney had agreed to give
an affidavit only on the matter of Dazzo s work history
96 Starting with Region 29 s staff on a part time basis in the summer of
1973 while a law student Smith became a full time law clerk there in
August 1974 on graduation She remained with that Regional Office until
September 1976 becoming a field attorney after her admission to the Bar
in October 1975 At the time of the hearing Smith was in the private
sector
97 Under standard procedures unfair labor practice cases are instituted
by the filing of charges which then are investigated by Regional Office
personnel on whose report the Regional Director in consultation with
the investigating Board agent and the office hierarchy decides whether
complaint should issue its scope in relation to what originally was
charged or whether the charge should be dismissed as without ment
After the Regional Director absent settlement issues complaint evidence
to support the contained allegations is presented by attorneys on the Re
gional Office staff at a hearing before an administrative law judge Such
hearings are conducted in accordance with the Federal Rules of Evi
dence and of Civil Procedure The judge s decision may be appealed to
the Board Board decisions may be reviewed by the Federal appellate
courts
with the Company and his supervisory status but would
not include matters relating to Dazzo s termination
While they were together Smith showed Atherton a
photocopy of the letter that became General Counsel s
Exhibit 3 38 and recorded her recollection of Atherton s
reaction to that document in her above quoted file note
Reviewing and interpreting her file note abbreviations
and shorthand symbols at the hearing 39 Smith noted
that the Company or Atherton had refused to give evi
dence on termination and that the Charging Party
(Dazzo) had played a role in the Company s campaign
Following the asterisk on the file note she wrote that a
letter had been offered by Dazzo to show the Employ
er s mood at the time he was terminated and that Ather
ton recalled directing that a letter be typed Para
graphs 1 and 2 of what became General Counsels Exhib
it 3 were noted as standard for such letters in cases of
employee dismissal However Atherton had found the
language of paragraph 3 of General Counsels Exhibit 3
which contained the representation that the Union had
caused Dazzo s discharge to be atypical and he did
not think he would write- (a) this thought (b) this Ian
gage As Smith testified these described doubts could
have come either from Atherton or his attorney She did
not remember
Continuing Smith s interpretation of her file note Ath
erton had conceded the possibility that the letter had
been prepared on a typewriter normally used by a typist
at the Company who had the initials ss for Sharon
Spmicchia Although the file note indicated that the
typist had said she recalled instructions to type a letter
for Dazzo but did not remember the contents Smith did
not remember whether she had spoken to the typist 40
Smith related that the file note accordingly could indi
cate that Atherton or whoever was speaking as compa
ny representative had told her what the typist had said
or that the typist had spoken directly to Smith Smith
simply did not recall 41 She similarly did not remember
18 Smith earlier had reproduced the copy of G C Exh 3 from the
ongmal that remained in Dazzo s possession
98 Smith s file note provided her best recollection of the August 8
interview with Atherton
40 In her uncertainty Smith cannot validly contradict the Company s
typist at the time Shaudel who testified that she had not spoken to
anyone from the Regional Office
41 Smith s memory of events was remarkably poor even allowing for
the passage of time She did identify her handwriting on various Regional
Office file documents she had prepared in connection with her work on
the case and her testimony was predicated largely on what she read
rather than on independent or revived recollection This was true even to
the extent that she could remember the name of her immediate Board su
pervisor of the time only by reading her case report where his name ap-
peared Smith s memory problems are more difficult to understand be
cause during her investigation of the two related charges she expended
considerable effort just one item of which was the taking of a 29 page
affidavit in her own handwriting from Dazzo Among related activities
she also interviewed and took handwritten affidavits from other wit
nesses orally reported her findings and recommendations to the Regional
Director and other members of that office s hierarchy at a meeting
called an agenda and wrote a minute following that session Each case
was separately reported to her office Her interview with Atherton while
investigating the charge against the Company took place in anticipation
that the circumstances of Dazzo s discharge in any event might be hti
gated in the case against the Union where complaint already had issued
However at the hearing Smith remembered little and volunteered noth
mg
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
whether she wrote the file note when she took the
August 8 affidavit from Atherton or thereafter or
whether the note had been prompted by an on site inter
view or by a telephone call 42
Smith similarly did not recall when using a different
pen she wrote the critical last paragraph of the above
quoted file note that the Employers basic position is
that letter is a forgery-or a copy of letter executed by
Employer with an addition paragraph inserted by Dazzo
without Employers knowledge or consent She did not
remember if it was added when she wrote the preceding
paragraphs of the file note or thereafter
Smith recalled only that she had discussed General
Counsels Exhibit 3 with Atherton but not specifically
what he said except that he had dented having written
the letter She related in this regard that Atherton had
said something to the effect that that was not the letter
to Anthony Dazzo
Smith also did not remember having received samples
of typed materials from the various office typewriters on
the Company s premises although in his May 31 1978 of
fidavit Atherton claimed that he had obtained such sam
pies and had shown them to Smith in connection with
her inquiry concerning General Counsels Exhibit 3 43
Later in August, in a memorandum to Regional Direc
tor Samuel M Kaynard and Regional Attorney Harold
L Richman Smith in conjunction with her immediate
supervisor successfully recommended that the charge
against the Company be dismissed This report in rele
vant part included the following
For Case No 29-CB-2130 this Region has alleged
that the Union coerced the Employer in its selec
tion of representative for purposes of adjusting
grievances
The evidence indicated that sometime in Febru
ary 1975 on a date not certain but on a day when
Employer met to negotiate a contract with Union
agents and shop committeemen the Employer dis
charged Dazzo Dazzo offered as evidence of the
occurrence and reason for it a letter signed by
Company president Richard Atherton Sr stating
he was terminated because a union dispute arose
and to avoid a strike The Employer denied
that a letter containing such language was written.
The Employer has refused to state why Dazzo
was terminated [Emphasis added ]
Smith however recalled no discussion with her super
visor or anyone else in the office concerning the state
ment in her above report that Atherton had denied sign
ing his letter 44
42 As to her general practice of recording interviews , in connection
with her preparation of the file note Smith disclaimed having had any
practice She said that sometimes she would take a pad and pencil to
make a note of what was said and sometimes , after she interviewed a
witness she would summarize what was said in her report She only
from time to time summarized in writing after an interview what wit
nesses had stated but did not do so in every case
43 See R Exhs 6 and 10
44 Contrary to Smith s original testimony that her involvement with
cases relating to Dazzo s discharge ended with the issuance of her above
3 The testimony of counsel for the General
Counsel
283
Harold R Weinrich 45 who as counsel for the General
Counsel in the original proceeding introduced General
Counsel s Exhibit 3 over the Respondent Union s vigor
ous objection described in detail the events that led to
the use of that document in evidence
Weinrich whose office at the time was across the hall
from Smith s recalled discussing this case with her soon
after it was assigned to him 46 Weinrich related that on
one occasion in August after being assigned to the hear
mg but before receiving the file Smith told him in re
sponse to his inquiry that the CB case (where the
Union was Respondent) was about a supervisor who al
legedly had been fired at the instance of a union and
that the CA case (involving the Company) was bast
tally a supervisory issue She also opined that the (CB)
case was easy because the Regional Office had this
great letter from the Employer admitting that he had
terminated Dazzo at the Unions insistence Weinrich
asked Smith when he was going to get the file and her
investigation report so he could find out about the case
for himself Smith explained that she had been extremely
busy had agendaed (orally reported) the case against the
Union was still investigating the case against the Com
pany and intended to get her report and the file to
Wemnch as soon as she could
After Weinrich first looked at the file and saw the
photocopy of General Counsels Exhibit 3 his initial re
action expressed to Smith was that it was a good thing
they had the letter because without it he thought the
case really would have problems Smith agreed with this
assessment
Later however after he finished reviewing the entire
file in the case against the Union and had also read
Smith s investigation report in the case against the Com
pany with specific reference to the above-quoted nota
tion that The Employer denied that a letter containing
such language was written Weinrich had a second con
versation with Smith He asked whether the front
office was aware of the problem with the letter that
Atherton when shown the letter had basically stated
that the letter looked like his but he did not remember
signing a document with those words on it Smith re
plied that she did not think that she had made the front
office aware of the problem
Sometime before mid November when an earlier
scheduled hearing date was postponed Weinrich had a
third conversation with Smith concerning the file photo
report in August the record reveals that on October 14 she wrote a
memorandum to Harold R Weinrich then assigned as counsel for the
General Counsel in which she relayed a settlement offer made to her by
the Union s attorney
45 Weinrich currently in private practice began his employment with
Region 29 as a law clerk in October 1971 After his admission to the Bar
in February 1972 he continued with that office as a field attorney until
leaving to join the private sector in March 1977 While a field attorney
Weinrich among other things, investigated and prosecuted unfair labor
practice cases.
4e Smith s testimony that she had discussed the matter with Weinrich
only briefly during the hearing is not credited as her memory of events in
which she was substantially involved was so poor as to be suspect.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of General Counsel's Exhibit 3, which he began by
asking what the story was with the letter. When Smith
asked what he meant, Weinrich inquired whether Ather-
ton had cooperated in the investigation and, if so, to
what extent. Smith replied that Atherton had cooperated
very well with respect to the investigation of the charge
against the Company, and had given an affidavit in that
matter concerning Dazzo's supervisory authority. How-
ever, he had refused to cooperate as to the charge pend-
ing against the Union, except that he, had looked at the
letter (G.C. Exh. 3) when it was shown to him and had
made the remarks shown in her file note. In response to
Weinrich's question if she thought Atherton was telling
the truth as to whether he had signed the letter with
words as they appeared, Smith said that she did not
know.
Weinrich testified that although he had read so much
of Smith's above-quoted file note which expressed doubt
about the letter until, in connection with the present
hearing, he had not seen the last.paragraph of that note
to the effect that Atherton's position basically was that
the letter was a forgery. Weinrich asserted that although
he had been opposed to the use of General Counsel's Ex-
hibit 3 at the hearing, forgery, was not mentioned during
his various discussions, before and during the hearing,
with colleagues and supervisors at the Regional Office
concerning the letter's authenticity and use in evidence.
Rather, these conversations had proceeded as though a
routine evidential conflict existed of a type that' often
arose during such investigation. Atherton's unsworn de-
nials concerning the General Counsel's Exhibit 3 signa-
ture were counterbalanced by Dazzo's sworn testimony
to the contrary and by other evidence indicating that
Atherton, in fact, had signed the letter. As defined by
Weinrich, for the letter to have been a forgery, someone
other than Atherton must have signed it.-
Weinrich related that he had become aware of the po-
tential problem with what was to become General Coun-
sel's Exhibit 3 even before seeing Smith's report. He was
not certain as to precisely what had called the problem
concerning the letter to his attention in the first instance,
but if it was Smith's file note of her interview with Ath-
erton, he reiterated his certainty that he did not see it
with the last paragraph, referring to forgery, in place. He
had taken an appreciable amount of time after receiving
and reading Smith's case report to the Regional Office
before going to speak to Regional Attorney Harold L.
Richman47 on the matter, because his initial reaction was
that if the letter had been mentioned in her report, as it
was, then the Regional Office must know that Atherton
had denied signing the letter containing those words.
However, he had retained some doubts.
Accordingly, a few days after his third conversation
with Smith on the letter, Weinrich went to Regional At-
torney Richman . Weinrich asked if Richman was aware
that Atherton claimed that he never had signed the letter
with those words in it. Weinrich declared that it ap-
peared to him that the Regional Office had relied almost
exclusively on the letter. Based on Atherton's comments
47 The Regional attorney , or chief law officer, generally is second in
authority in a Regional Office after the Regional Director
to Smith, Weinrich did not think that either the letter or
any conversations with Atherton that had given rise to it
would be admissible at the trial and, if the letter and
such background conversations were bases for the deci-
sion to issue complaint; then, maybe Richman, as Re-
gional attorney, and the Regional Director. might want
to change their minds Richman48 replied that while he
had not been aware of the problem, it did not change his
mind. Richman expressed the view that this was the kind
of case that would improve at the trial and that Weinrich
obviously was overlooking all of the circumstantial evi-
dence in the case which, in Richman's opinion, estab-
lished•a violation. Richman asked Weinrich to show him
the photocopy of the letter in the file. The two com-
pared the signature on General Counsel's Exhibit 3 to
that on Atherton's affidavit.49 Richman asked Weinrich
to try to speak to Atherton.
Pursuant to Richman's instructions, Weinrich called
Atherton and introduced himself as an NLRB attorney
assigned to litigate the case involving Anthony Dazzo.so
He told Atherton that the Regional Office had a letter in
its file provided by Dazzo which he knew Atherton had
discussed with Board Agent Marguerite Smith. He asked
to talk about the letter further with Atherton.-Atherton
replied that he did not want to speak to Weinrich and
did'not want to become involved in the matter-which, as
far as he was concerned, was a closed issue. Atherton
suggested that if Weinrich had any, further questions, he
should telephone his attorney.
Weinrich was unsuccessful in his attempt to speak with
Atherton's attorney and his call was not returned. Wein-
rich is not certain if he placed a second call.
In this period when Weinrich first discussed the letter
with Richman and was attempting to meet with Ather-
ton and his attorney, he also consulted, concerning the
evidential problems he felt were involved, with Max
Schwartz, the assistant regional attorney, and with two
attorney colleagues. Weinrich told these attorneys that
he had an 8(b)(1)(B) case for trial involving alleged re-
straint and coercion by.a union of an employer in the se-
lection of the Employer's bargaining representative for
the adjustment of grievances. The complaint alleged that
an automobile services manager had been terminated as a
result of such restraint and coercion. The Board agents
were informed, during separate talks, that the Region
had some circumstantial evidence and that it had a letter
that indicated that Dazzo, the service manager, had been
discharged possibly at the request of the Union. The
letter was on Company stationery and signed by the
Company's -president. However, they were told that the
company president had said that while the signature on
48 All statements attributed to Richman and other present or former
Regional Office personnel , none of whom testified , with the exception of
Smith , are based on Weinrich 's uncontradicted testimony • -
4° Weinrich is not certain as to whether they also compared the signa-
ture on the letter to that on the commerce questionnaire, a form that
Atherton had previously completed , signed, and returned, describing his
Company's position in interstate commerce This information related to
Board jurisdiction.
50 By the time of Weinrich's call to Atherton, the charge against the
Company had been dismissed for some time and there no longer were
matters against that employer pending in the Regional Office
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC) - 285
the letter looked like his, he never had seen a letter'with
those words on it. Weinrich then asked whether, if he in-
troduced this letter into evidence assuming he was able
to have the signature authenticated, the letter could' be
construed as an admission against the Union. .
The two attorney colleagues with whom Weinrich
raised this matter did not believe that; under those cir-
cumstances, the letter could be taken as an admission
that would be binding against the Union, with which
Weinrich agreed. Assistant Regional Attorney Schwartz
initially asked why this situation was- different from one
involving any other letter. When informed by Weinrich
that here it was the Union and not the Employer that
was the adverse party, Schwartz, too, agreed that the
letter would not serve as an admission.
As to any direct involvement of Regional Director
Samuel M. Kaynard in this matter, Weinrich testified
that early during his involvement in this case, he attend-
ed a meeting where Kaynard was present. At that time,
Weinrich had tried to make Kaynard and other supervi-
sory personnel in attendance understand that if the Re-
gional Office had issued its complaint in reliance upon
Atherton's testimony, they ought to look again at the
case. Weinrich had no recollection of Kaynard being
consulted concerning the use.of General Counsel's Ex-
hibit 3, had no personal conversations with Kaynard re-
garding possible introduction of the letter, and had no
knowledge of anyone else having discussed the matter
with Kaynard.
In the time before the first hearing and virtually until
General Counsel's Exhibit 3 actually was introduced,
Dazzo retained possession of the original letter while a
photocopy remained in the Regional Office file. Wein-
rich related that he met with Dazzo and the latter's
friend and consultant, Frank Filipelli,51 on the day of
the hearing and on at least one occasion before the hear-
ing began for trial preparation.
During Weinrich's prehearing interview with Dazzo,
also in Filipelli's presence, Weinrich explained that he
thought they had an uphill fight and that the case was
not as clear in his own mind as it was in Dazzo's. Dazzo
and Filipelli, in turn, asked about the letter from Ather-
ton of which Weinrich had a copy. Weinrich declared
that the letter in and of itself did not prove anything
with respect to the Union and was not the great piece of
evidence they thought it was for proving the Union's
culpability. He explained that the letter was hearsay con-
taining two links. While, by introducing this letter, he
could prove that Atherton had made the statement set
forth therein concerning reasons for discharge to Dazzo,
this could not prove that anyone from the Union had
made such a statement to Atherton. Therefore, the letter
proved nothing with respect to the Union.
Dazzo, according to Weinrich, then asked why he did
not call Atherton as a witness. Weinrich replied that he
was not going to call Atherton who had questioned the
authenticity of the letter. Dazzo retorted that the letter
51 Filipelli, who was described as having acquired investigatory experi-
ence while with another Federal agency, served as Dazzo's advisor and
constant companion during the investigation and initial hearing, when
Dazzo was unrepresented by counsel
was authentic and that he could not understand why
Atherton was saying it was not.
Although Weinrich asked to see, the original of the
letter during their pretrial interview, he did not actually
see it until it was produced by Dazzo before the record
opened on the morning of the first day. According to
Weinrich's undisputed -testimony, Dazzo then had shown
him the original of the letter to convince him that the
letter should be introduced in evidence. Filipelli, too,
had joined in urging that the letter be offered and that
Atherton be called as a witness. While Filipelli was at-
tempting to be "the voice of reason," Dazzo was more
emotionally involved in arguing for the introduction of
the letter Weinrich again repeated that in his mind the
letter was hearsay twice removed and worthless. The
Regional Office had not issued complaint based on an in-
tention to use that letter but on other circumstantial evi-
dence, and that that would carry the day.
The conversation then returned to why Weinrich did
not call Atherton. Weinrich again pointed out that Ath-
erton was not going to help them. Atherton had said that
he had never signed a letter with those words on it, and
if Atherton had been the kind of guy who was going to
stand up (to the Union), Dazzo would not have been out
of work. Therefore, Weinrich reiterated, he did not think
that calling Atherton to the- stand would help Dazzo.
Also, Weinrich's instructions were not to call as wit-
nesses those from whom the Regional Office did not
have statements. As Weinrich did not have an affidavit
in this area from Atherton, he was not going to subpoena
him. He told the two men that if they wanted to subpoe-
na Atherton, they certainly had the right to do so, but he
would not.
As the General Counsel's direct case was drawing to a
close, Dazzo became increasingly upset that Weinrich
had not introduced the letter from Atherton and the at-
mosphere was becoming very unpleasant. According to
Weinrich, Dazzo was "really busting [his] back." Finally,
Weinrich obtained a recess and went to speak to Region-
al Attorney Richman about the matter.
In Richman's office, Weinrich announced that he was
about to close the General Counsel's case, but that he
had not introduced the letter previously discussed be-
cause, as far as he was concerned, the letter was of no
probative value and was somewhat questionable. Wein-
rich explained that he -had been involved in a running
feud with Dazzo concerning the introduction' of the
letter and, for that matter, Atherton's testimony. He told
Richman that Dazzo was really upset with him for his
unwillingness to introduce the letter and to subpoena
Atherton. As Dazzo was in such a state, Weinrich
wanted to check with Richman before resting his case.
When Richman asked what Weinrich's problem was
introducing the letter, he was told that, first, the letter
was not probative of anything, and therefore Weinrich
did not see why it should go into the record. Second, in
view of Atherton's , failure to authenticate the letter,
Weinrich thought, in any event, it was questionable
whether the letter should go into the record.
Richman asked if Dazzo could authenticate the signs=
ture on the letter. Weinrich answered that Dazzo had
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him he had seen Atherton's handwriting, was famil-
iar with it, and that the.signature that.appeared on.the
letter belonged to Atherton.. Therefore, the signature on
the letter could be authenticated using.Dazzo's testimo-
ny.
Richman then stated that in his opinion this situation
was no different from any other type of credibility ques-
tion normally dealt with at the.Board in that here was
Dazzo, an individual, saying "white"-that this was Ath-
erton's signature-and there was Atherton, who to some
extent, was 'saying "black"-by denying that it was.
Richman observed that Atherton was not even "making a
total denial, but merely had said that it looked like his
signature, but that he never had signed a letter with
those words on it. Richman then rhetorically asked, well,
what did it mean, and repeated that this was iio different
from any other credibility question. Richman, too, asked
whether, if Atherton had succumbed to the alleged union
pressure in terminating Dazzo, would Weinrich really
expect him to turn around and testify against the Union.
Had Atherton been persuaded to fire Dazzo from fear of
the Union, why would he then admit this? .
Weinrich replied- that he thought this situation was a
little different because when the Region had a credibility
question, usually both sides were there. Richman pointed'
out that .this was not always the case ; often there were
credibility issues that went unrebutted. He then directed
Weinrich to put the letter in evidence "for whatever it
was worth."
Richman then asked Weinrich about calling Atherton
as a witness. Weinrich reminded Richman, repeating his
earlier words to Dazzo, that it' was the Regional Office's,
usual procedure not to subpoena a witness from whom it
did not have a statement. Not only did the office not
have a statement from Atherton, but Atherton had re-
fused even to cooperate with Weinrich in his investiga-
tion. Therefore, Weinrich explained, he had followed ex-
isting procedures in -not subpoenaing Atherton, and-had
told .Dazzo, who was completely irate about this, that
while he would not'do so, Dazzo certainly was free to
subpoena Atherton', himself. When Weinrich then asked
Richman if he wanted to authorize a request for. the issu-
ance of a subpoena, at that time, offering to request a
continuation of -the hearing so that such a subpoena
might be served , Richman said no.
After leaving Richman's office, Weinrich returned to
the hearing room .where, while the recess continued, he
asked if Dazzo was sure he could authenticate'the signa-
ture on the letter. Dazzo affirmatively stated that he was
familiar with Atherton's signature, having seen it on re
ports in the service department. Weinrich then took- the
original of what was to become General Counsel's Ex-
hibit 3 and the company envelope, hand-addressed, in
which Dazzo had. brought the letter to the courtroom
that day.52 _
62 Although Dazzo originally identified this envelope, in evidence as
C.P. Exh. 1, dated February 13 by the Employer' s postage meter and
postmarked at Huntmgton ,,New York, on February 14, as the envelope
in which G C Exh. 3 was received, with the - result that C P. Exh I later
was so represented as part of the record in'the enforcement proceeding
befor the court of appeals, Dazzo changed this testimony at the supple-
mentary hearing . Dazzo presently asserts that the letter was received in a .
The record of the earlier hearing covering this testi-
mony53 shows that Dazzo testified that, on the day after
his February 11 discharge, he called Atherton and told
his former employer that he would like to speak to him
about his termination and why it had happened. He
stated that he could - not believe that Atherton had let
him go because the Union had so demanded. Atherton
replied that he would be happy to talk to Dazzo but did
not want him to come to the shop. They agreed to meet
the next day, February 13, at the restaurant in Bayshore,
New York. Over objections by the Respondent's counsel,
Michael Schnipper,54 that what might have been said by
Atherton to Dazzo in this connection would not be bind-
ing on the Union, Dazzo was permitted to describe his
February 13 meeting with Atherton at the restaurant.
At their meeting; Dazzo told Atherton that he could
not believe that the Union had pressured Atherton into
getting rid of Dazzo. Atherton said that he was sorry
that Dazzo had to be the lamb to go to slaughter but
there was nothing he could, do about it,at that time. Per-
haps Dazzo could be put back to work in a month or
two. .
Dazzo then asked if Atherton would send him a letter
stating the reason he really.had been fired. Atherton an-
swered that Dazzo's work had been okay; he never had
had any trouble with Dazzo and they had been together
a long time.
After lunch, the two men parted. Continuing Dazzo's
original testimony, on Friday, February 14, he went' to
the Company's office to pick up his pay. When he ar-
rived there, Atherton was reluctant to shake hands and
told him that his pay would be mailed to him. Dazzo tes-
tified that Atherton did not want him around the prem-
ises.
Dazzo testified that during his 10 years with Atherton
Cadillac, he had become familiar with Atherton's signa-
ture, having seen it on various business documents, could
recognize it, and that the signature on General Counsel's
Exhibit 3 belonged to Atherton. Dazzo also was of the
view that the handwriting used to address the envelope
(C.P. Exh. 1), in which he initially claimed General
Counsel's Exhibit 3 was received, belonged to Sharon
(Shaudel), the secretary, and that, obviously, envelopes
usually were addressed there by hand.
When asked by Judge Lieberman if he was offering
General Counsel's Exhibit 3 for the truth of its contents,
Weinrich replied that he was offering it as corroborative
of Dazzo's testimony concerning the circumstances of his
discharge, especially the date of discharge, and to indi-
cate the reasons given to him at the time by the Employ-
er.
typed addressed envelope in evidence as C.P. Exh 9 , bearing the postage
meter date of February 18. The Respondent Union draws on this incon-
sistency to challenge Dazzo's general credibility and to focus additional
doubt about the letter's authenticity. Dazzo , in turn, explained that his
final paycheck had arrived in C P. Exh. 1, that the letter of recommenda-
tion did not arrive in C.P Exh 9 until later, after he had asked about it,
and that the confusion occurred because he had stored the various papers
in the same drawer at his home
62 Tr. 103-110.
64 Schmpper, at the initial hearing, was connected with the same law
firm that appeared for the Respondent here.
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
Weinrich testified that after General Counsel's Exhibit
3 was made part of the record in the earlier proceeding,
but while that hearing was still in progress, he had an
off-the-record conversation with the Respondent's coun-
sel, Michael Schnipper. According to Weinrich, he said
that Schnipper was making a big deal of nothing because
the document was not-being offered for the truth of is
contents.55 He (Weinrich) certainly could authenticate
the document through Dazzo, and if Schnipper ques-
tioned Dazzo's authentication, he was free to bung that
out on cross-examination. Weinrich reminded Schnipper
that his client, the Union, had a collective-bargaining re-
lationship with Atherton-and that if, in their view, Ath-
erton did not write the letter, then Schnipper should put
Atherton on the stand and have Atherton testify for him. •
Weinrich could not recall whether he also told Schnip-
per about Atherton's expressions of doubt concerning
General Counsel's ' Exhibit 3. Schnipper, however,
merely repeated that he did not think that Weinrich
should have put the letter in evidence, but made no re-
sponse that Weinrich could recall about calling Atherton
as a Respondent's witness.
After his above conversation with Schnipper, Wein-
rich had a second recess meeting of the day with Re-
gional Attorney Richman. Weinrich told Richman that
Schnipper was quite beside himself over the introduction
of General Counsel's Exhibit 3 and had objected vigor-
ously both on and off the record concerning its use.
Weinrich reported that Schnipper had been principally
upset because of Weinrich's failure to call `Atherton for
the authentication of the letter, but -that he had told
Schnipper that he had no plan to call Atherton because,
as far as he was concerned, the letter was properly au-
thenticated. He had told Schnipper that he certainly
could call Atherton if he so desired. I
Weinrich then asked Richman whether he should
withdraw the letter in view of the degree of Schnipper's
agitation and the personal reservations he previously-had
expressed to Richman. Richman replied that Weinrich
should not withdraw the letter from evidence.
Weinrich then asked whether Richman thought that
they should advise Schnipper that there was some ques-
tion with respect to the letter. Richman said that he saw
no reason they should deviate from their policy of not
disclosing things from the Regional Office file. He told
Weinrich that in his mind this was no different from an
instance when you take statements from a group of 10
employees, 5 of whom say, "The boss said that if you
sign the [authorization] card you'll be fired," while the
other 5 say, "The boss never said that." Richman told
Weinrich, "You never -disclose exculpatory evidence."
Accordingly, General Counsel's Exhibit 3 remained in
evidence.
After Judge Liberman issued his decision finding for
dismissal of the complaint, Weinrich prepared a memo-
randum to the Regional Office, entitled "Comment on
66 The record indicated that G C Exh 3, in fact, had been offered for
the truth of its contents
287
ALJ Decision," recommending that exceptions not be
taken:56 This recommendation was not adopted.
Summarizing, Weinrich testified that his own efforts to
authenticate General Counsel's Exhibit 3 included at-
tempts to speak to Atherton and to his attorney, his
questioning of Dazzo as to how he received the letter,
and his own pretrial comparisons of the signature on
General Counsel's Exhibit 3 with that on Atherton's pre-
hearing affidavit in the Regional Office file. These signa-
tures were convincingly similar to him.
Weinrich reiterated denials that he had seen Smith's
file note reflecting the assertion of forgery as contained
in the last paragraph, which, he claims, was not then in
place. During Weinrich's discussions with other Board
agents concerning use of the letter, his 'principal concern
had-been whether the Union could be bound by its con-
tent, or whether it simply was hearsay. He did not con-
sider the letter to be a forgery. Similarly, his discussions
with the Regional Attorney on the day of the trial con-
cerning the introduction of General Counsel's Exhibit 3
involved, as Richman put it, "a question of credibility
not unique to this case." As Richman saw it, if Atherton
had"been, coerced by the Union into
Ri _ sa
Dazzo, in line
with the General Counsel's theory of the case, he would
not "bend over" to give cooperative testimony if called
as a witness by the General Counsel because he was not
going to- do anything that would get him involved with
the Union. According to Weinrich it was for this reason
and not to circumvent forgery that Atherton was not
called. In this regard, Dazzo, too, had argued with him
that Atherton be called as a witness. Dazzo had been in-
terested in having Atherton also testify concerning mat-
ters other than the letter, as well.
Weinrich described a difference of opinion he had had
with the Regional attorney at the time of the hearing
concerning use of the letter. According to Weinrich,
Richman's rationale was that the General Counsel often
gathered- conflicting case information that is not dis-
closed, as in the above illustration involving 10 employ-
ees in a group , 5 of whom described what would be an
unlawful threat from their Employer,' while the other 5
denied that it had been made. Although Weinrich consid-
ered this analogy to be valid as relating to an oral evi-
dential inconsistency, he was uncomfortable with its ap-
plication to General Counsel's Exhibit 3 as a document
could sometimes take ow a greater meaning than oral tes-
timony. While so much of Smith's file note as he had
read had'raised a question of the letter's' authenticity in
his mind, Weinrich related that he apparently had been
ss In a footnote to his comments on the judge's decision, Weinrich
noted that an adverse inference had been drawn by his failure to call
Atherton concerning the restaurant conversation, where Atherton asser-
tedly told Dazzo that union agents had announced that they would not '
sign a contract and would strike unless Dazzo was discharged and, also,
to authenticate GC Exh 3, which tended to corroborate the foregoing
Weinrich provided the following explanation to his office for not having
calling Atherton
It should be noted that the Employer refused to discuss his reasons
for dismissing the Charging Party with the Board agent investigating
the instant case and refused to give a sworn 'statement with respect
to this issue The Employer also refused to discuss this issue with'
me Based on the above it was decided that the Employer would not
be called as a witness by the General Counsel.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
troubled by this more than had Richman 57 Moreover
Section 102 118 of the Board s Rules and Regulations
described above precludes the random disclosure of the
contents of investigating files on the volition of any
Region
C Expert Testimony
The Respondent Union and the Charging Party each
called a witness expert in examining questioned docu
ments or handwriting experts who testified with respect
to the authenticity of the General Counsels Exhibit 3
signature The Respondents witness was Russell D Os
borne 511
I The testimony of Russell D Osborne
Osborne related that in his view the signature on
General Counsels Exhibit 3 was a forgery
In Osborne s view while the first name was more
skilfully made the middle initial C and the last name
were poorly done According to Osborne the middle mi
tial was a bad mistake in that the small reverse loop sup
posedly curling the top of the letter C was made low
at the baseline of that letter in a style inconsistent with
Atherton s writing habits While concededly different ex
emplars or undisputed samples of Atherton s signature
used for comparison showed middle initial loops of van
ous sizes at different distances from the signature base
lines and others showed either no loop or no clearly
pronounced loop Osborne explained that even these dif
ferences would be more consistent with Atherton s writ
ing pattern than the clear but low loop in General Coun
sel s Exhibit 3 The three loopless middle initials among
the exemplars according to Osborne, had been hurriedly
made and in more of the exemplars did the loop come
so close to the baseline
Osborne testified that the last rame of the disputed sig
nature was drawn very slowly in a conscious free hand
imitation , rather than written or traced He considered
Atherton to have been a very good writer who wrote his
name freely and rapidly By contrast the execution of
the disputed signature was different There according to
Osborne an imitator had been obliged to proceed more
slowly while watching a model signature so as to be able
to copy the forms and combinations of the upper and
6' As for himself Weinrich testified that he had been so fed up with
Dazzo that he would have thought it great if Atherton had come to the
stand and blown him out of the water
se As the Charging Party did not concede Osborne s expert quahfica
tions it is germane to note them Although not college trained Osborne
based in New York City is a certified member of the American Society
of Questioned Document Examiners and of the Document Section of the
American Academy of Forensic Science He has worked as an examiner
of questioned documents for approximately 25 years having peen trained
principally by his father in the family firm Osborne s father in turn had
learned document examination from his own father the firm s founder
A S Osborne The senior most Osborne was the author of many articles
and four books in the field the best known of which Questioned Docu
menu is a generally recognized treatise cited also by the Charging Party
herein Osborne s father and teacher had collaborated with A S Os
borne in writing one of the aforesaid four books Based on the record as
a whole noting also that Osborne has provided expert testimony in
courts of various States on approximately 125 occasions I reaffirm my
finding at the hearing that he is qualified to testify as an expert in his
field
lower case letters as closely as possible while at the
same time eliminating all of the copier s personal writing
characteristics To illustrate his conclusion that the last
name had been drawn slowly rather than written sponta
neously Osborne indicated that the capitalized first letter
A in the last name did not show the nice rounded
curve and form as in his exemplars and was without
the shaded quality to the line This was because it was
done slowly Speed makes for more excellence in form
when done by a good writer
Osborne also indicated that there had been a repair to
the disputed signature in the end flourish stroke that ran
backward right to left from the end of the last letter n
to cross the second t in the last name There Osborne
testified the slowly drawn flourish line revealed a stop
and a break There was no break or evidence of repair
elsewhere in the signature Osborne did not regard a
small ink dot in the backsweep of the aforesaid flourish
line to the right of the t and above the n to be a
repair explaining that the dot could have formed be
cause the pen was not clean or because the writer had
hesitated He characterized the dot as something that oc
curred when the writer makes a sharp change in the di
rection of the writing and the ballpoint of the pen picks
up a few fibers from the paper 59 A spontaneous writer
would not have stopped in the middle of tl•e flourish but
would have finished it out to the left in one umnterrupt
ed sweep in a manner consistent with Atherton s occa
sional practice Atherton did not always end his signa
ture with a flourish 60
Osborne substantively relied on his sense of Atherton s
basic writing habits or patterns in concluding with abso
lute certainty that the General Counsels Exhibit 3 signa
ture was a forgery and to explain how he could conclude
that certain differences among the signature exemplars
which might seem more extreme than what was noted on
the disputed signature still could properly have belonged
to Atherton while General Counsels Exhibit 3 with less
conventional signature differences having the looped
middle initial and the final flourish could not
In defining writing habits Osborne was vague and
conclusionary focusing principally on execution His
opinion largely was based on his sense that the signer of
General Counsels Exhibit 3 had written more slowly
than Atherton had in the undisputed exemplars and that
this was reflected in the shape of certain letters and in
the cleanness of the stroke Imes In this regard he dented
that the low placement of the loop in the middle initial
C in the questioned signature could have resulted from
hasty writing as had the missing or less evident loops in
the standards because the disputed C was drawn more
slowly than any of the corresponding middle initials in
the exemplars
59 In distinguishing the dot reflecting the change in direction from a
repair Osborne explained that while every stop and change in direction
is not necessarily a repair every repair might involve a stop and change
of direction Repairs, slowly drawn are reflected by jerky Ines
60 Among the exemplars of Atherton s signatures were a number
where no flourishes were used and where Atherton crossed the t in his
name using a separate unconnected cross bar drawn from left to right
AUTO WORKERS LOCAL 259 (ATHERTON. CADILLAC)
Although Osborne conceded that stress or nervousness
could affect writing, in his view that was not a factor
here. Had Atherton been extremely upset or nervous and
had held his pen tightly, scrimping his style, his signature
would not have had nearly • the continuity of line that
otherwise would have - been • present, but his writing
habits still would be evident. In such circumstances, his
writing would have been a bit more sloppy, but would
not have been as slow and as carefully made as on the
disputed document.
Although to Osborne, the differences in execution em-
phasized throughout his testimony as a principal basis for
his conclusion of forgery-i.e., slow drawing and careful
application as opposed to rapid spontaneity-revealed
that the dissimilarities between the General Counsel's
Exhibit 3 signature and the exemplars were not indica-
tive that the writer had been upset or had, had finger
troubles when moving the writing instrument, he was
quite evasive in indicating defects in the way the first
name on the General Counsel's, Exhibit 3 signature was
written. He finally conceded that it was good imitation.
Osborne explained that many a free-hand forger starts off
pretty well, but gets worse as the writing progresses in
the effort to be done.
Osborne testified that when he "first was retained to ex-
amine the General Counsel's Exhibit 3 signature, he was
told that it was a forgery. He further testified that when
he initially examined the enlarged reproduction of that
signature that he used in his analysis, his impression was
one of suspicion, but he was not convinced that it was
bad. His further study persuaded him beyond any reason-
able doubt the signature was `nothing more than a good
imitation , fairly good in part .61
2. The testimony of Felix Klein
The Charging Party's handwriting expert, Felix
Klein,62 on the other hand, testified that the signature on
General Counsel's Exhibit 3 was authentic and that the
typewriter used to prepare that letter was of the same
brand as other typewriters in the Company's office.63
Klein's conclusion that the General Counsel's Exhibit
3 signature'was that of Atherton was based on his find-
ings that the writing had been done "extremely free
61 Osborne 's late testimony chaiactenzing the signature as a "good
imitation" contrasts sharply with his earlier descriptions of that writing as
"atrocious " _ ,
62 Klein's expert qualifications were stipulated , except that the Re-
spondent Union attempted to impeach his testimony on the ground that
in addition to examining questioned documents, Klein also practiced and
taught graphology Graphology, defined in Webster's Seventh New Collegi-
ate Dictionary as "the study of handwriting especially for the purpose of
character analysis," is held in low esteem by certain courts in New York
where this action arose See Daniels v. Cummins, 321 NYS 2d 1009,
1013-1016 (New York S.Ct, 1971), cited by the Respondent. In Daniels,
the Court accepted the testimony of the handwriting expert to the extent
that it related to document authentication and discredited so much of his
testimony as involved conclusions about the writer's mental health which
were based on handwriting analysis As Klein's relevant qualifications are
stipulated , I find nothing in Daniels or elsewhere that requires that Klein
be discredited in matters relating to signature authentication because of
his interest in and pursuit of another subject
63 Klein could neither state whether G C Exh 3 was typed on the
same actual machine as other typewritten samples prepared in the office,
nor could he identify the typewriter brand
289
hand, without any hesitation whatsoever."64 In his view,
Atherton's signature was the most difficult to forge be-
cause it was an "extremely freehand" signature. Unless
the copier had had an ability to write almost exactly like
Atherton, Klein believed that forgery would be impossi-
ble.
Klein noted that the first name on the General Coun-
sel's Exhibit 3 signature was done much like that on the
exemplars. The middle initial "C" showed a variation in
that the initial circular loop was made closer to the base
line than the other samples. However, in Klein's opinion,
this was a normal variation for Atherton. He further
concluded that the last name was written with extreme
similarity to the exemplars-noting the rising and falling
of certain letters and the manner in which the name
tilted.
Under 60 power magnification, only a single pen
stroke can be examined at one time. Klein testified that
under such strong magnification, hesitation marks in the
stroke-indicating pause or interruption-can be seen.
After so examining the final flourish, challenged by Os-
borne, Klein related that although it might seem that
there had been hesitation in making the stroke, there was
no actual sign of interruption. Had there been, a break in
the stroke would have been clearly visible, either in the
form of a dot or a completely blank spot that would
have been visible only under major magnification. These
were not present. He offered two possibilities for the
variation in the relevant flourish from those in corre-
sponding strokes in comparison exemplars:65 (1) that
there was some kind of disturbance, i.e., something had
been under the paper, or (2) that the reverse stroke could
sometimes so appear when done very quickly.
Klein testified that examination under the microscope,
which he ' demonstrated at the hearing, revealed that the
final back flourish continued in the same width, which
meant that the pen had not been removed from the
paper. He explained that while, to the naked eye, the dis-
84 Klein's examination consisted of looking at the signature under
power magnifications of 10, 18, and 60 times , comparing it with numer-
ous exemplars , and an "impulse " test of his own improvisation, which
consists of drawing straight lines between various points where, in his
view , the diverse writing impulses that produced the signature began and
ended These lines produce an "impulse pattern " that, according to Klein,
is unique to each individual His test is based on the premise that attempt-
ing to forge the signature of another, however, attentive to letter forma-
tions and spacing , still would not produce the same writing impulse pat-
terns as the original Since, contrary to Klein's original testimony, there
is no showing that his impulse test ever has been accepted by a court of
record, and as his testimony concerning its precedential use and accept-
ance was inconsistent , I do not rely on this test in evaluating Klein 's testi-
mony This is without prejudice to such merits as the test may have, on
which no substantive judgment is made However, it is noted that the im-
pulse test was only one of the work methods used by Klein in reaching
his conclusions Klein testified that on the basis of his other analyses, his
conclusions concerning authenticity would have been the same even
without the impulse test
6s The line area in question in the G C Exh 3 final flourish appeared
somewhat more set off and pronounced than those immediately preced-
ing and following Klein's testimony was that forgeries manifest them-
selves by stopping and continuing, thereby causing a break in the line
This appears as a complete interruption in the stroke with a physical
space in between, although the pen did not rise from the paper Forgeries
also might be indicated by a thickening or difference in the width of the
stroke, or in a change in direction of the stroke after the stop
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted flourish segment might seem thicker than the parts
of the stroke line leading to and away from it, micro-
scopic examination revealed that the area in question was
merely heavier as to color, not wider.66
Klein also concluded, contrary to Osborne, that there
were so many known Atherton signature exemplars
where 'the last name ended with a flourish, and so many
that ended without, even within the period when Gener-
al Counsel's Exhibit 3 was dated, that there absolutely
was no significance in the presence or absence of flour-
ishes in identifying Atherton's signature. Also noting the
number-of variations of the loop in the middle initial "C"
among the exemplars he•further concluded that the loca-
tion or absence of a loop similar to that in the General
Counsel's Exhibit' 3 signature could not be considered an
important part of an examination to determine its authen-
ticity.ei
Based upon typewriter tests he conducted, which en-
compassed analysis of typing characteristics, including
the spacing, displacement, and baseline levels of certain
typed letters and numbers, Klein reported that General
Counsel's Exhibit 3 had been typed on a typewriter of
the same brand as other such machines in the Company's
office. _However, he could not state that the same type-
writer was used, could not identify the brand, or wheth-
er the characters were produced by keys as opposed to
ball type.
A weakness in Klein's testimony, in addition to the
above-noted inconsistent account of the use and court ac-
ceptance of his impulse test, was his report, dated May 2,
1980,68 to the Charging Party's counsel. There, he earli-
er had set forth the above conclusion that the same
brand of typewriter was used for General Counsel's Ex-
hibit 3 as the other letters in the case, noting that certain
specified combinations of letter characters always
touched each other. However, at the time Klein pre-
pared the 1980 report, he had had access only to the
originals of General Counsel's Exhibit 3 and of about
three exemplars-a number well below what is normally
used by experts to reach conclusions, far below the
number of exemplars introduced at the hearing, and far
fewer than Klein himself actually used before finally tes-
tifying at the hearing. e 9 As it is undisputed that photo-
copies provide distortion and are much less desirable
comparison standards than are originals, I find that Klein
should have awaited additional original exemplars before
preparing an evidential report.
66 Also contrary to Osborne, my own observation of the enlarged ex-
emplar signature on check number 1663, forming a part of R Exh. 64,
indicated a similar but less pronounced configuration in the final flourish
67 Klein also was of the view that the freehand signature on G C Exh
3 was genuine as the free hand signature of a forger would have tended
to be larger
68 C P Exh 21
89 Klein explained that he had prepared his 1980 report before the
May 5 start of the hearing because, between April 28 and May 2 of that
year, the Charging - Party's attorney had provided him with the docu-
ments received from counsel for the Respondent that the Respondent's
handwriting expert , Osborne, was going to use for his verification. Klein
did not receive additional documents, relayed from the Union 's counsel,
until later , after the start of the hearing
D. Nonexpert Evidence Supporting Authenticity
1. The testimony of Anthony Dazzo
Dazzo testified that on February ^ 12, the day after his
discharge, he telephoned Atherton and • asked if they
could discuss what had happened the previous day be-
cause he could not understand his abrupt termination
after having worked for Atherton for almost 11 years.
Atherton replied that he would be happy to go over the
matter and agreed to meet him the next day at the res-
taurant in Bay Shore, New York, which Atherton select-
ed.
At the restaurant on February 13, Dazzo again told
Atherton that he could not understand why he had been
terminated. He asked if Atherton could make it clearer
to him, pointing out that he had been a faithful employee
for' 10 years but nonetheless was fired on 'the spot be-
cause someone had pressured Atherton. Atherton, in
effect, acknowledged that he had been pressured' and
that the only way he could get out of that was to bend
to demands that Dazzo be discharged. Atherton ex-
pressed regret-that Dazzo had to be the "one that went
to slaughter" but could do nothing,else at that time.
Dazzo asked if Atherton would put what he had said in
a letter for him because he needed a letter of recommen-
dation to search for another job. Atherton said that he
would.
On Friday, February 14, Dazzo went to the Compa-
ny's premises to pick up his pay, proceeding directly to
Atherton's office. According to Dazzo, Atherton became
very upset, telling Dazzo that he did not want anybody
to see Dazzo on the property. Atherton, reluctant to
speak to Dazzo, merely told him that his check was in
the mail . When Dazzo asked about his letter, Atherton
told him that he would receive it. Dazzo then departed.
Dazzo related that he received his check on either the
next day, Saturday, February 15, or on Monday, Febru-
ary 17, in a hand-addressed envelope postmarked Febru-
ary 14, in evidence as Charging Party's Exhibit 1.
About Monday, February 17, • after receiving his
check, Dazzo called the company office but was unable
to speak to Atherton . Instead , he talked with Sharon
Spinicchia, who, as noted, also operated the switchboard.
Dazzo told Spinicchia that he was calling to inquire
about his letter of recommendation, promised but not re-
ceived. Dazzo did not recall whether' Spinicchia told him
that the letter had been drafted or, if it had been typed
but not mailed. In any event, Atherton had not yet
signed such a letter. Spinicchia reassured Dazzo that she
was waiting for Atherton to sign the letter and that she
personally would see that it was mailed out. Dazzo
thanked her.
One or two days after Dazzo's conversation with Spin-
icchia, he received General Counsel's Exhibit 3 in the
mail in the envelope, marked Charging Party's Exhibit 9,
in which also was enclosed the above-quoted February
18 cover message from "Sharon" to the effect that Ath-
erton had asked her to type a note asking Dazzo to
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
return his keys, and that enclosed was the letter that she
believed he had been waiting for.70
Dazzo denied having forged General Counsel's Exhibit
3, having caused that document to be typed, having in-
serted a paragraph, or in any way having caused that
document to be altered. He also denied knowing of such
conduct on the part of anyone-else, or having reason to
believe that the letter was not authentic.
Dazzo described two disagreements with Weinrich at
the initial hearing. First, although he -had wanted Wein-
rich to call Atherton as a witness, Weinrich had refused
on the ground that under NLRB existing policy, the
General Counsel would call only those witnesses who
had given signed statements. Second, Weinrich had re-
fused Dazzo's request to put General Counsel's Exhibit 3
in evidence on the ground that it was irrelevant. Nothing
ever had been said to Dazzo by Weinrich to the effect
that General Counsel's Exhibit 3 might be a forgery.,
Inconsistencies between Dazzo's testimony before
Judge Lieberman and here, and when General Counsel's
Exhibit 3 was mailed,71 included Dazzo's failure at the
initial hearing to refer to the typed February 18 note
from ""Sharon," which he now claims was enclosed with
General Counsel's Exhibit 3; and that when Dazzo origi-
nally testified that he had received General Counsel's
Exhibt 3 on February 15 or 17, he did not then indicate
when it was that-he received his final paycheck. Finally,
at the present hearing, until reminded on cross -examina-
tion , Dazzo did not refer to the fact that the Company's
fleet sales manager, Jack Bums, also had accompanied
Atherton to their February 12 restaurant meeting.
2. The testimony of Agnes Crossin
Counsel for the Charging Party also called as a wit-
ness his wife and law-partner, Agnes Crossin, 7 z to testify
concerning similarities between the setup of General
Counsel's Exhibit 3 and two other letters which unques-
tionably were signed or initialed, by Atherton in the
course of .the Company's business . All bore the typist's
initials, "ss." Crossin's testimony was offered to contra-
dict that of former Office Manager Grace Kent and
Shaudel, the typist, that General Counsel's Exhibit 3 had
not been set up, marginated, and neatly prepared in con-
formity with the Company's office policy as reflected in
its correspondence:
Agnes Crossin demonstrated that General Counsel's
Exhibit 3 and the two other letters had been typed in
elite, rather than pica, characters73 and that, given the
70 Spimcchia , as indicated , was not familiar with this note when shown
to her at the hearing -
71 At the first hearing , Dazzo, contrary to his present testimony, in
identifying C P Exh I as the envelope in which G C Exh 3 was re-
ceived , rather than C P Exh 9 as here, recognized the address -on C P
Exh. I as in the handwriting of Sharon Spimcchia Shaudel and testified
that the Company usually handwrote envelopes
72 Before obtaining her legal education , Agnes Crossin had had several
years of experience as a secretary and as a legal secretary ,, respectively
She assists her husband , performing both legal and secretarial work
7' By drawing six 1-mch -wide perpendicular columns down photocop-
ies of the three letters, and by referring to a typing text , Crossin showed
that elite type, which fits 12 characters to an inch, was used The alterna-
tive, pica type , allows 10 characters per inch
291
remaining space, the widths of the margins on the Com-
pany _8-1/2-by-11 inch letterheads used for General
Counsel's Exhibit 3 and the authentic comparison letters
were, for all practical purposes, the same, varying only
by two or three characters.
Also, contrary to testimony from Kent and Shaudel
concerning the high standards set for the appearance of
company correspondence, Crossin observed that in one
of the exemplars letters; dated April 29, 1976, one word
had been misspelled.74 It is also noted that on another
comparison letter, dated June 9, 1975, a-typewritten sen-
tence had been augmented by a phrase inked in by
hand,75 a characteristic germane to General Counsel's
Exhibit 3 which, also showed a correction to the-type-
script made by pen. General Counsel's Exhibit 3, howev-
er, had many more corrections than,the comparison let-
ters. In fact, Crossin identified eight still-visible correc-
tions to, General Counsel's Exhibit 3.
Interestingly, Crossin noted that General Counsel's
Exhibit 3 closed, as did Atherton's exemplar letters, with
the more rarely used, "Yours very truly," as opposed to
the more conventional ending, "Very truly yours.
As.Agnes Crossin's status might indicate,, her testimo-
ny was not burdened by excessive objectivity. Consistent
with Dazzo's interests, she attempted to make more
probable the authenticity of General Counsel's Exhibit 3
by establishing it as a letter prepared at the Company in
the normal course of business by describing it as a usable
business letter in setup and appearance., Only reluctantly,
after repeated questioning, did she concede that she had
not allowed such a letter to leave her office, while still
maintaining that she had seen correspondence like that
issue from other places where she had worked.
E. Discussion and Conclusions
1. Authenticity -
Although the General Counsel at the first hearing had
the burden of establishing the allegations of the com-
plaint-that the Respondent Union ,,had violated the
Act-that point has 'since been passed and the judgments
entered against the, Respondent have the presumption of
regularity. Therefore, it was incumbent on the Respond-
ent Union as the moving party -in. this supplemental pro-
ceeding seeking to vacate these findings to establish that
the General-Counsel had acted improperly and prejudi-
cially at the original hearing, as charged, by deliberately-
introducing a forged document in evidence, and/or by
failing to meet a duty of disclosing to the Respondent in-
formation in possession that challenged the document's
authenticity and which, if made available, would have.
enabled the Respondent to more adequately respond. In
this connection, the Respondent contends that if it had
known at the first hearing that the General Counsel had
information in his file indicating that-General Counsel's
74 C.P. Exh" 14.
75 C.P. Exh. 13.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Exhibit 3 was not authentic, it then could have coun-
tered by calling Atherton as a witness.76
As, to authenticity, I find no convincing evidence from
the record of this proceeding that the signature on Gen-
eral Counsel's Exhibit 3 was forged or that that docu-
ment was altered after having been signed by Atherton.
In so concluding, it is noted, in agreement with the
General Counsel, that, except for the file note by Board
Agent Smith, which will be considered below, the Re-
spondent Union offered no evidence from witnesses who
had known and discussed General Counsel's Exhibit 3
with Atherton that showed that Atherton had ever un-
equivocally denied having signed the letter. The testimo-
ny of the then office manager, Grace Kent, and Ather-
ton's son, Richard A. Atherton Jr., with whom. Atherton
discussed the letter in August, was only to the effect that
he had not recalled having written or signed it. Atherton
never said to either that he had not signed the letter and
that it definitely was not his. Opinions ventured by Kent
and Atherton Jr., as witensses familiar with same, that
the signature on General Counsel's Exhibit 3 did not
look to them as having belonged to Atherton are coun-
tered by Atherton Jr.'s further testimony that his father
had told him at the time that the signature looked like
his, an acknowledgment later repeated by Atherton in
his 1978 affidavit. Both witnesses related that file copies
of the letter were not found.
I credit the testimony of Sharon Spinicchia Shaudel
that she did not type General Counsel's Exhibit 3, that
she did not first see that letter until a photocopy was
shown to her on June 20, 1978, by Union Staff Organizer
Steve Elliot at their restaurant meeting almost 3-1/2
years after it was dated, and that the letter did not con-
form to the appearance requirements of correspondence
mailed in the course of business from the Company's
office during her employment there. Shaudel appeared to
be an earnest, forthright, and consistent witness who had
no personal interest in the outcome of this proceeding.
Having long since been terminated by the Company, she
owed the Athertons no favors, and, unlike Laurie
Samara who had arranged her two meetings with Elliot,
neither Shaudel nor her husband -was a member of the
Respondent Union. The testimony of Shaudel and Kent
that General Counsel's Exhibit 3 did not meet the ap-
pearance standards required of letters mailed from the
company office because of indicated defects makes sense.
As a practical matter, it would be an obstacle for any en-
terprise to flourish while regularly issuing business corre-
spondence of such indifferent aspect. Support for this
view was incidentally afforded by the Charging Party's
witness, Agnes Crossin, who conceded, however reluc-
tantly, that she would not have issued a letter from her
office that looked like General Counsel's Exhibit 3.77
76 In addressing the way in which G C Exh 3 was handled by the
General Counsel, although that exhibit was not relied on in reaching the
original determination , the court of appeals and the Board have afforded
the document a significance beyond its evidential value because of the
possible impact on the hearing itself.
77 As it would enhance the prospective authenticity of G C Exh 3 to
show that that document had been typed in the Company's office in the
normal course of business , the Charging Party tried to impeach Shaudel's
testimony that G C. Exh 3 was below office standards by arguing that
that Company's correspondence , in general, could not have looked too
While the Charging Party, 'through Agnes Crossin,
also showed, contrary to Shaudel and Kent, that the
margin widths on General Counsel's Exhibit -3 were in-
consequentially different from those of letters undispu-
tedly produced in the Company's office and that not all
correspondence attributable to the Company was with-
out error or correction, no other formal typewritten
company-originated document produced at the hearing
looked nearly as messy as did General • Counsel's Exhibit
3 with its eight visible corrections and other incidences
of bad secretarial practice. -One'such poor practice noted
by Agnes Crossin was that the prefix "Mr." ended one
line, separating it from the attached name "Dazzo"
which began the next line. Accordingly, from the cred-
ited evidence, I conclude that Shaudel was not involved
in the typing or preparation of General Counsel's Exhibit
3 and did not first see that document until more than 3
years after Dazzo's discharge.78
Noting again that Shaudel appeared to be a forthright,
consistent, and .disinterested witness, I similarly accept
her testimony that she had no role in the preparation of
the February 18 note , typed-signed "Sharon," that
Dazzo now claims was received with General Counsel's
Exhibit 3. However, she was not asked to testify about
the February 17 testimony conversation, described by
Dazzo, where Dazzo inquired about the status of his
letter, which testimony, therefore, stands uncontradicted.
Shaudel, employed in a small office, could have learned
of the mere existence or prospective existence of a letter
for Dazzo at the time, as touched on in Smith's file note,
without actually having typed or. read it . Shaudel testi-
fied that Atherton mailed his own correspondence.
Both the Respondent Union and- the Charging Party
adduced the testimony of handwriting experts to support
their respective positions. The Respondent's expert wit-
ness , Osborne, testified that the signature on General
Counsel's Exhibit 3 was a forgery, while Klein, the
Charging Party 's witness , affirmed with equal certitude
that the signature was genuine . Klein appeared to be
clearly the more consistent and comprehensively effec-
tive witness, and I found his testimony to be the more
convincing.
In so concluding, it is noted that Osborne's method of
evaluation, which consisted largely of projecting his per-
ception of Atherton's "basic writing habits" was less ana-
lytical than was Klein 's approach, and was hard even for
Osborne to define. Osborne' s point in this -regard , relat-
ing to execution , was that the last name of the signature
was slowly drawn rather than freely written, and that,
therefore, the letters were poorly formed and the final
good as Shaudel later was terminated for poor work performance: Al-
though Shaudel 's ability to do her job at the Company was not litigated
at the hearing , it is noted that she had been employed by the Company
for 5 years and had done all the typing while performing various other
services, on a full-time basis for the last 2 years of that period Others
typed for Atherton only in her absence From the foregoing , it is reason-
able to infer from Shaudel 's tenure and responsibilities that she must have
been doing something right - -
78 Although a factor affecting probability , it is not a necessary prereq-
uisite in determining authenticity for me to decide just who had typed
G C. Exh 3, and no such finding is made In this regard , Kent testified
that Atherton knew how to type Her further testimony that he never
would have typed such a letter is speculative
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
flourish showed repair 79 This was countered by Klein
who testified that Atherton s signature would be virtual
ly impossible to forge that haste in writing could affect
the shape of the letters 80 and who demonstrated that the
flourish had not been repaired Osborne did not criticize
the way the first name Richard was signed on Gener
al Counsels Exhibit 3
Although Osborne also relied on the placement of the
reverse loop in the middle initial C as lower and closer
to the baseline of the writing than other signature sam
pies and observed that there had been a hesitant inter
ruption in the final backward flourish stroke a number
of the exemplars or comparison signatures used at the
hearing showed that at other times Atherton in signing
his name either omitted the middle C loop altogether
made it so small as to be undefined or formed it at dif
ferent sizes and levels along the height of that letter
Other samples showed that Atherton did not always end
his signature with a backward flourish running from
right to left but crossed the second t in his name by
separate cross bars or Imes running from left to right
Klein s conclusion that in view of the existing variations
the location or absence of the loop in the middle C
could not be considered an important part of an examma
tion to determine authenticity and his further finding
that there was no sigmficance in the presence or absence
of flourishes in identifying Atherton s signature appeared
to be the more inclusive and logical explanation of differ
ences between the General Counsels Exhibit 3 signature
and those of exemplars As to whether the General
Counsels Exhibit 3 flourish might have been interrupted
Klein demonstrated under a microscope that it was not
and provided explanations as to what might have caused
the change in the appearance of the line at a disputed
point
Although critical of the way the middle initial and last
name of the General Counsels Exhibit 3 signature ap
peared Osborne could find little fault with the way the
first name was written a point he finally and reluctantly
conceded He also was inconsistent in his characteriza
tions finally terming the General Counsels Exhibit 3 sig
nature a good imitation after earlier describing it as
atrocious
Osborne s approach appeared to have been less objec
tive from the start He was told when retained that the
General Counsels Exhibit 3 signature was a forgery and
testified that it looked suspicious even before beginning
his analysis
By contrast even discounting Klein s impulse test 81
he reasonably related characteristics of the General
78 The final flourish was a backward stroke from the letter n that
crossed the second t in Atherton
80 This effect of haste referred to by Klein was supported by a pas
sage from a treatise on the subject produced and read into the record at
the hearing
81 Although Klein s testimony was flawed by inconsistencies relating
to the extent to which his impulse test had been accepted by the courts
and by his readiness to issue his report of May 2 1980 while working
from photocopies and without adequate original exemplars I have not
relied on the impulse test and the initial shortage of original exemplars
was corrected by the time of his testimony In spite of these consider
ations Klein s testimony remained the more impressive
293
Counsels Exhibit 3 signature to variations in the exem
plars was direct in his testimony and did not speculate
on perceptions of ill-defined basic writing habits attnb
utable to Atherton I therefore find more persuasive
Klein s testimony that the General Counsel s Exhibit 3
signature is authentic and that it was prepared on a type
writer of the same brand as others tested from the corn
pany office 82
Also in accordance with the Board s holding that ad
mmistrative law judges as triers of facts may determine
from comparison of disputed signatures with proved or
admitted ones whether such signatures are those of the
persons represented 83 I have compared the General
Counsels Exhibit 3 signature to other exemplars in evi
dence and find them quite similar Also noted is the more
ranfied closing to General Counsels Exhibit 3 Yours
very truly which is a detail in conformity with compa
ny-ongmated letters
Another persuasive reason for finding the General
Counsels Exhibit 3 signature authentic is Altherton s
above quoted affidavit of May 31 1978 84 his only
sworn statement on this matter Atherton under oath
did not directly deny having signed General Counsel s
Exhibit 3 but avowed that when Board Agent Smith
had shown him that document he advised her that al
though the signature looked like his he had no recollec
tion of signing such a letter and that while Smith contin
ued to investigate that day he caused each of the type
writers at the Company to be checked to attempt to as
certain whether or not the letter had been typed at the
Company to further explore the letter s provenance
Copies of such tests included in the record were
shown to Smith at the time
This 1978 affidavit consistent with testimony by Ath
erton Jr and Kent of their August conversations with
Atherton concerning the letter is equivocal containing
neither a direct denial that he had signed General Court
sel s Exhibit 3 a denial he easily could have made nor
an assertion that the letter was a forgery Rather he
again affirmed as he had 3 years before that the signa
ture looked like his but he could not recall having
signed such a letter
Atherton s continued failure to directly deny the au
thenticity of General Counsels Exhibit 3 because of diffi
culties of recall gains in significance from the realization
that when he gave the 1978 affidavit Atherton had
every incentive to disavow the disputed letter At the
time Atherton personally his Company and the Union
were codefendants in a state court suit for damages
brought by Dazzo on the strength of the judgments ob
tamed in this proceeding before the Board and the court
of appeals The affidavit was not made before a Board
agent but apparently had been prepared with friendly as
sistance for use in an effort to have the underlying Board
decision vacated so as to undercut the pending lawsuit
82 Unlike Klein Osborne did not report the results of typewriter tests
83 Teamsters Local 707 (Claremont Polychemical) 196 NLRB 613 625
(1972) and cases cited in fn 21
84 See R Exh 6 The admissibility and weight affordable to this affi
davit, although the statement of a decedent is discussed at fn 28 above
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this context Atherton s professed memory difficul
ties are hard to understand Dazzo s termination and the
accompanying events were steeped in controversy and
litigation-the Union s organizational campaign the
Company s countercampaign the difficult bargaining
after the Respondent was certified as bargaining repre
sentative the filing and investigation of unfair labor
practice charges against the Company and Union fol
lowed by Dazzo s ongoing lawsuit in the state courts In
discharging Dazzo Atherton abruptly lost his general
service manager who had been a key supervisor and an
associate of 10 years As the Board found even when
the first collective bargaining agreement finally was
signed only after Dazzo left bargaining had been stalled
and a strike threatened Against this dramatic back
ground where just about every incident that related to
Dazzo s termination could be expected to remain
memory impressed in stark detail Atherton s uncertain
response to the General Counsels Exhibit 3 letter and
signature explained by his claim of poor memory does
not constitute a convincing actual denial which he so
readily could have provided In these circumstances I
cannot be more certain than was Atherton that the signa
ture on General Counsel s Exhibit 3 was not his 85
My conclusion of authenticity is further supported by
the uncontradicted testimony at the hearing both from
Weinrich and Dazzo that Dazzo repeatedly had sought
to have Atherton called as a witness for the General
Counsel at the original hearing while at the same time
urging that Weinrich introduce the letter that became
General Counsels Exhibit 3 Although Atherton may
have equivocated under oath in his 1978 affidavit and
elsewhere concerning General Counsels Exhibit 3
Dazzo has continuously conducted himself as though the
letter was authentic and that Atherton whose participa
Lion in the hearing he actively had sought would con
firm this
The only direct assertion that General Counsels Ex
hibit 3 might be a forgery appeared in the last paragraph
of Smith s file note which written with a different pen
and from her testimony and that of Weinrich may have
been added some time after the paragraphs preceding it
Smith does not recall when or where she added this
paragraph and Weinrich repeatedly testified that al
though he had seen the file note the last paragraph con
cerning forgery had not then been added The record
does not show just when the last paragraph was writ
ten 86
as As argued by the Charging Party if Atherton personally had con
sidered G C Exh 3 a forgery his response to that document which he
had known was being circulated and used since August 1975 was decid
edly relaxed Also Atherton had not generated such large scale corre
spondence as to have submerged G C Exh 3 from memory Shaudel tes
tified that she had typed an average of two to three letters a week for
him
se As noted Smith did not remember just when she wrote the file
note itself as opposed to the last paragraph She did not recall whether
the note had been prompted by an onsite interview or by a telephone
call Smith denied having followed any practice in preparing file notes,
relating that sometimes she would take notes of what was said and some
times after interviewing a witness she would summarize what had been
said She summarized in writing the witnesses words only from time to
time but did not do so in every case
Smith s testimony memory of events and work habits
to the extent reflected in the record were singularly un
impressive The file note in question was so informally
drawn with scratched-out portions personalized abbre
viations and was so hard to decipher that it was neces
sary to have Smith translate it for the record However
Smiths interpretation at the hearing made the meaning
of some of the words previously written less certain Ac
cordmgly Smith could not recall whether doubts about
the thought and language of the letter as reflected
in the note had been expressed by Atherton or by his
attorney and although the file note indicated that the
typist had said she recalled instructions to type a letter
for Dazzo but did not remember the contents Smith
does not recall whether she had spoken to the typist her
self or whether the file note reflected information re
ceived from Atherton or another company spokesman
who themselves had spoken to the typist Moreover
Smith s general recollection of all aspects of a case in
which as noted she had expended considerably invests
gatory effort was so poor as to reflect upon her willing
ness to cooperate in this inquiry
As Smith s work habits germane to the file note s
preparation and her memory for events are most uncer
tam not all representations in her file note may be taken
literally Therefore from the record as a whole I find in
agreement with the General Counsel herein that Smith s
characterization of the disputed letter in that paragraph
as a forgery more likely was a personalized summary
impression than a verbatim record of what actually was
said to her on August 8 concerning the letter s authentic
sty In so concluding it again is noted that Atherton in
all other references to General Counsels Exhibit 3 had
been consistent through the years in presenting an equiv
ocal response that always stopped short of specific denial
or outright assertion that the letter was false
For the above reasons which include considerations of
expert testimony I find the letter in evidence as General
Counsels Exhibit 3 is authentic 87 No evidence has been
87 The Respondent argues with some force that Dazzo s credibility
was adversely affected by above -noted inconsistencies between his
present testimony and that given at the original hearing as to the timing
the sequence and the specific envelope in which G C Exh 3 was re-
ceived and also by his failure to previously have referred to the accom
panying cover note from Sharon These considerations , clearly get
mane do not outweigh the above-noted more direct factors indicative of
authenticity including Atherton s own rather tolerant reaction to the
letter through the years The Respondent Union further argues that, in
now changing his testimony as indicated Dazzo was attempting to
counter subsequently received information that Shaudel the asserted
typist, had denied familiarity with G C Exh 3 by contriving a cover
note from her for G C Exh 3 to increase her involvement . Also by rear
ranging the sequence of delivery so as to account for separate receipt of
both the final paycheck and the letter accompanied by the new cover
note Dazzo was trying to make his story consistent in furtherance of this
effort Dazzo originally had testified that G C Exh 3 was received on
February 15 or 17 after Atherton had told him on February 14 that his
last check was in the mail The implication there was that G C Exh 3
was received on February 15 or 17 with the check in the envelope
marked C P Exh I Dazzo now asserts that the check was received by
itself in C P Exh I on February 15 or 17 but that G C Exh 3 and the
cover note arrived later in a second envelope , marked C P Exh 9 only
after his telephone call to Sharon asking about his letter of recommenda
tion According to the Respondent, Dazzo s changed account is a recent
Continued
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC) 295
offered and none is found to show that this letter was
substantively altered after having being signed
2 Disclosure and the manner of introduction
The Respondent Union nonetheless contends that the
complaint herein should be dismissed as the General
Counsel when introducing General Counsels Exhibit 3
at the initial hearing failed to disclose to it evidence that
was then in the Regional Offices possession that not
only questioned the authenticity of that document but
which actually labeled it a forgery 88 In support of its
argument for dismissal the Respondent Union contends
that it has been denied a fair initial hearing by such non
disclosure and that a fair hearing cannot again be provid
ed because Atherton no longer is available Although as
noted the document in question as hearsay was not a
factor relied on in the fining of violation the Respond
ent s position is that the General Counsel s conduct with
respect to General Counsels Exhibit 3 tainted the entire
proceeding
The General Counsel in turn asserts that the letter
was used properly as evidence at the Initial hearing that
the Regional Office had a justifiable good faith belief in
its authenticity at the time and that there was no unful
filled duty of disclosure Although Atherton did briefly
talk to Smith about General Counsels Exhibit 3 he had
refused to provide a sworn statement about that letter or
the reasons for Dazzo s discharge Atherton continued to
be uncooperative even after he became a neutral witness
following dismissal of the charge against the Company
also refusing to give information when Wemnch later
contacted him Moreover even Smith s controversial file
note so emphasized by the Respondent is equivocal as it
indicated that Atherton and/or the typist recalled that
Atherton had given instructions that a letter for Dazzo
be typed and that the first two paragraphs of the letter
looked familiar to him Atherton himself questioned
only the third paragraph which could have put him in
conflict with the Union a situation that he was trying to
avoid under the General Counsels theory of the case
The General Counsel claims justifiable reliance on
Dazzo s account of the letter s authenticity Not only
had Dazzo been consistent in affirming the letter s genu
ineness in the time before the first heanng he had been
the only witness willing to take a position under oath on
that matter In these circumstances and also on the basis
of the Region s own comparison of signatures the Gen
era] Counsel concluded that Dazzo s evidence that the
letter was authentic was more reliable than Atherton s
fabrication that would enable him to better counter Shaudel s anticipated
denial of familiarity with G C Exh 3 by implicating her more directly
and that C P Exh 9 the second envelope actually had been taken from
some other company mailed correspondence This elaborate argument is
speculative and is not evidentially supported Dazzo s testimony here and
at the initial hearing describing his postdischarge meetings with Atherton
which led to the letter of recommendation are basically consistent even
if not binding as to the Respondents conduct
88 Contrary to the Charging Party I find no basis for augmenting
Weinrich s testimony that he could not recall whether during their con
ference as the initial hearing he had told the Respondents counsel
Schnipper of the existence of such evidence by inferring affirmatively
from such uncertain testimony that a disclosure had then been made be
cause of Weinrich s announced dislike of Dazzo
uncooperative inconsistent and unsworn hints to the
contrary
The court of appeals and the Board have adopted a
firm stance concerning the obligations of the General
Counsel at hearings to protect the legitimate interests of
all parties This in part is exemplified by the U S Court
of Appeals for the Eighth Circuit in NLRB v Selwyn
Shoe Mfg Corp 89 cited by the Respondent that
The findings of the Board are of course conclu
sive when supported by substantial evidence but
this presupposes a full compliance by the Board
with the fundamental requisites of a fair hearing A
party to an administrative proceeding has the right
to prove facts showing that the procedure followed
renders the order of the administrative agency
void Cupples Company Manufacturers v NLRB
103 F 2d 953 956 (8th Cir 1939) See Ohio Bell Tel
Co v Public Utilities Comm. of Ohio 301 U S 929
304-305 57 S Ct 724 81 L Ed 1093 (1937) Morgan
v United States 304 U S 1 14-15 58 S Ct 773 82
L Ed 1129 (1938) We are fully cognizant that not
all departures from proper procedures justify a re
viewing court in setting aside administrative deci
sions-that material prejudice to the interest of the
complaining litigant must clearly appear NLRB v
Ford Motor Co 114 F 2d 905 909 (6th Cir 1940)
cert denied 312 U S 689 61 S Ct 621 85 L Ed
1126 (1941)
The General Counsel has responsibilities beyond
that of a mere adversary As a public official he has
a duty and obligation to be fair to all parties and
not to knowingly suppress relevant evidence [Foot
note omitted ]
In Selwyn Shoe the court at 224 held in effect that
whether the General Counsels treatment of evidence in
possession warrants dismissal of the complaint depends
on whether prejudice has resulted to such an extent as to
vitiate the entire proceedings
In Multimatic Products 90 in remanding a matter for
further hearing where fraud on the part of the Charging
Union and improper conduct on the part of Regional
Office personnel with respect to that proceeding were al
leged the Board majority noted that
[T]he Board acts in the public interest to enforce
public not private rights National Licorice Campo
ny v NLRB 309 U S 350 (1940) Indeed we
cannot emphasize strongly enough that serious alle
gations have been made not only that a party to an
unfair labor practice proceeding may have grievous
ly abused the process of this Agency but also that
personnel of this Agency may have somehow wit
tingly or unwittingly played a role in that abuse
Thus the public interest and the public trust in this
99 428 F 2d 217 224-225 (8th Cir 1970) Although Selwyn Shoe is fac
tually distinguishable in that among other things the disputed evidence
in that matter had formed a basis for the determination reached the
standards set forth there for administrative proceedings are relevant here
90 263 NLRB 373 373-374 (1982)
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Agency are at stake It is therefore imperative that
a full and open hearing be had concerning such alle
gations so that all the evidence may be brought to
light
Without becoming involved in analysis of the cases
cited by the Respondent on the public prosecutors re
sponsibilities to the parties some of which are mapphca
ble here as relating to standards germane to criminal
rather than civil proceedings 91 it is clear from the above
that the General Counsel as a public official proceeding
in the public interest exercises a trust encompassing re
sponsibilities beyond those of a private adversary These
include a duty of fairness to all parties and to not know
ingly suppress falsify or actively or passively misrepre
sent evidence
There also exists on the other hand recognition that
the contents of Regional Office files must be guarded as
extremely confidential and avenues of access to such
materials have been closely defined 92 Traditionally de
mands for exculpatory information from the General
Counsel have not been granted 93 This caution has ex
tended even where a respondent in a Board case brought
action under the Freedom of Information Act for the
documents and records that formed the basis of a Board
agents statements to an inquiring attorney that some of
the unfair labor practice charges against the respondent
were probably not meritorious at all 94 In a different
situation in Decibel Products 85 where representation
election objections had been strongly contested the
Board granted a summary judgment bargaining order al
though the respondent had had no prior opportunity to
reply to an internal Regional Office memorandum The
91 The Respondent s reliance on Brady v Maryland 373 US 83
(1963) in support of its argument that it is entitled to peruse exculpatory
information for the General Counsels file is misplaced That case and
others cited which involve criminal proceedings have been held to be
inapplicable to Board proceedings Nueva Engineering 269 NLRB 999
(1984) North American Rockwell Corp v NLRB 389 F 2d 866 873-874
(10th Cir 1969) Ene County Plastics Corp 207 NLRB 564 570 fn 29
(1973) enfd 505 F 2d 730 (1974)
Altemose Construction Co v NLRB 514 F 2d 8 12 13 (3d Cir 1975)
as quoted in the Respondents brief is not germane There among other
things the court found that the administrative law judge had erroneously
failed to grant a requested change of venue although witnesses might
well have been intimidated and the proceeding tainted by the mob at
mosphere outside the place of hearing Auto Workers (Gyrodyne Co) v
NLRB 459 F 2d 1329 (1972) also cited by the Respondent which dis
cussed the Board s obligation to draw an adverse inference where a recal
citrant respondent had failed to fully comply with a subpoena and in
other circumstances also is inapposite While the part of the Gyrodyne
decision quoted by the Respondent contained general language concern
ing essential fairness the entire context related to adverse inference The
applicability of drawing an adverse inference in the present matter was
considered by the Board in its initial decision but contrary to the Re
spondent was not included within the scope of this supplemental pro-
ceeding My responsibility in this matter is to make a recommendation
concerning the disposition of the Board s decision not to rearrange its
content
92 Sec 102 118 supra
98 See Nueva Engineering supra Magic Pan, Inc 242 NLRB 840 841
(1979) (request for exculpatory matter denied as an attempt to obtain pre
hearing discovery) North American Rockwell Corp v NLRB supra
91 Nissen Foods (USA) Co v NLRB 540 F Supp 584 (E D Pa 1982)
See also 515 F Supp 1154 (E D Pa 1981)
95 248 NLRB 1337 1338 ( 1980) enf denied on broader grounds 657
F 2d 727 (5th Cir 1981) summary judgment reaffirmed on remand 267
NLRB 1053 (1983)
Board rejecting the respondents argument that fairness
required that it be given such an opportunity noted
among other things that it had not relied on the docu
ment in reaching its decision Decibel Products too illus
trates the close treatment afforded memoranda in Re
gional Office files
Although the parties to the present matter have argued
at length as to whether exculpatory matter concerning
General Counsels Exhibit 3 should have been disclosed
by the General Counsel to the Respondent that issue is
not pivotal here This is principally because the questions
concerning General Counsels Exhibit 3 raised at the
hearing and since could have been answered most direct
ly if that document had been authenticated by and intro
duced through Atherton rather than Dazzo The failure
to authenticate General Counsel s Exhibit 3 through Atli
erton resulted in controversy where none need have ex
ited and as was foreseeable at the time served no useful
tactical purpose Therefore I would disagree with the
failure to call Atherton
Before particulanzing my variance from the General
Counsels decision not to call Atherton for the mtroduc
tion of General Counsels Exhibit 3 I would emphasize
that after comprehensive hearing and review of all rele
vant evidence in which the General Counsel has cooper
ated fully I find no evidence that the General Counsel s
representatives had acted from improper motive and my
dissent reflects a retrospective difference of opinion con
cenung a last minute judgment call made by the Region
al Office in the charged atmosphere of a hearing As
matters developed the General Counsels chosen course
in this regard was decidedly unbeneficial
Although it will be found here that the General Coun
sel at the time had valid reasons to support a good faith
belief in General Counsels Exhibit 3 s authenticity the
record shows that nonetheless there were abiding
doubts on the part of those within the Regional Office
most closely connected with the case as to that docu
ment s genuineness and evidential worth which doubts
could have been heeded with no ultimate strategic disad
vantage Smith reported to her office that Atherton had
denied signing the document and Weinrich found it ad
visable to consult repeatedly concerning the use of the
document with Smith and with other professional col
leagues In addition he also discussed the matter on
three occasions with the Regional Attorney two of these
sessions occurring during the trial Even after the docu
ment was in evidence Weinrich asked if it should be
withdrawn 96
Also although Weinrich testified that he saw no refer
ence to General Counsels Exhibit 3 as a forgery in the
Regional Office file and attended no discussion within
his office where that letter was considered as more than
a routine instance of conflicting evidence a constructive
knowledge of the file note reference to forgery must be
96 Weinrich testified however that based on his own signature coin
parison and other factors he personally believed the G C Exh 3 signa
ture to be genuine
AUTO WORKERS LOCAL 259 (ATHERTON CADILLAC)
found97 as the Regional Office clearly is charged with
the contents of its own files.98
Finally, as noted, no purpose ultimately was served by
the failure to call Atherton. The introduction of General
Counsel's Exhibit 3 through Dazzo, instead, was eviden-
tially meaningless and did not further the General Coun-
sel's case either as to the letter, itself, or as to Dazzo's
described postdischarge, restaurant conversation with
Atherton that the letter was intended to corroborate. Al-
though Dazzo provided the minimal authentication re-
quired to place that exhibit in the record, it was general-
ly discounted as hearsay. As Weinrich had repeatedly
foretold, if not offered through Atherton, General Coun-
sel's Exhibit 3 was not worth presenting. Also, had Ath-
erton been the witness, the manner. of proceeding would
have looked better and this matter might have ended
long ago.
Having made these observations, even with the above
imputation to the General Counsel of knowledge of the
contents of the investigatory files, I would reiterate that
I find no basis for' recommending that the Board's origi-
nal decision be set aside because of the conduct of the
General Counsel's representatives. Throughout a most
detailed examination , I have found no proof that their
deliberations and actions concerning General Counsel's
Exhibit 3 actually were taken in an awareness or belief
of forgery. Similarly, there is no showing that the letter's
introduction through Dazzo was an evasive circumven-
tion undertaken on the premise that the document was
not genuine. Rather, the matter was discussed internally
as a routine evidential conflict. From what was known at
the time, the Regional Office had valid grounds to sus-
tain a good-faith belief that the document was genuine.
Such factors included that Dazzo alone had stated under
oath, without comparable contradiction, that the exhibit
was authentic;99 that Dazzo's continued insistence at the
first hearing that Atherton be called tended to support
his assertions that General Counsel's Exhibit 3 was genu-
ine; and that Smith's file note, as indicated, was equivo-
cal in that it also revealed that Atherton had directed
that a letter be prepared for Dazzo and that the first two
paragraphs of the letter shown to him were standard for
letters of that type In addition, the General Counsel had
found similarity in signature comparisons and had intro-
duced the letter in clear recognition that the Respondent
Union might thereafter call Atherton as its own wit-
ness . i oo, Weinrich, in fact, had reminded the Respondent
97 Balanced against this imputation , however, is the above finding that
Smith 's file note was very informal and subject to a less than literal inter-
pretation
98 Weinrich , too, acknowledged the substantive difference between
routine evidential conflicts , which frequently develop during investiga-
tion, and situations where forgery is asserted
99 As noted, Atherton had refused to cooperate with Weinrich or to
challenge the letter's validity under oath even after dismissal of the
charge against his'Company, and months after he had learned of its exist-
ence If, in fact, he questioned the letter 's validity, his reaction to it was
decidedly controlled.
ioo At the time, as reasonably argued by the General Counsel, the Re-
spondent Union , by virtue of its bargaining relationship with Atherton,
had readier access to him than did the General Counsel -
297
Union's attorney at the time of his right to call Atherton.
While the Respondent has made much. of the way in
which the letter was introduced, it also did not call Ath-
erton to rebut Dazzo's related account of his postdis-
charge restaurant -conversation with Atherton where
statements damaging to the Union were made and which
the letter was intended to corroborate. While the Re-
spondent was not less justified than the Board in tactical-
ly regarding both this conversation and General Coun-
sel's Exhibit 3 as ' hearsay in the manner presented, the
point is that the General Counsel had not been deterred
in these areas because Atherton thereafter might have
testified. In evaluating the-parties' good faith'at the time,
there was a clear readiness on the part of the General
Counsel and Dazzo to invite Atherton's testimony and to
confront it.
Therefore, while disagreeing for reasons stated with
the General Counsel's judgment in introducing General
Counsel's Exhibit 3 through Dazzo rather than Atherton,
I find no evidence that the General Counsel had so pro-
ceeded with wrongful purpose. Also, from the above-
cited authority affirming nondisclosure of 'exculpatory
material from the Regional Office files, Section 102.118
of the Rules-and Regulations, and as the General Coun-
sel's good-faith belief in the document's authenticity was
reasonably supported, it does not appear that, in the cir-
cumstances of the present case, disclosure to the Re-
spondent of contents of the Regional Office file was war-
ranted.
Finally, as it has been found above that General Coun-
sel's Exhibit 3, in fact, is not a forgery and that, as a
result, the Respondent Union suffered no substantive
prejudice from the introduction of that document based
either on its authenticity or its evidential value; as the
General Counsel and Charging Party acted in good faith
and without' impropriety at the initial hearing with re-
spect to the introduction of General Counsel's Exhibit 3;
and as the General Counsel's failure to call Atherton to
authenticate General Counsel Exhibit 3, in these circum-
stances , was recompensed by the discounting of that ex-
hibit as evidence, i 01 I will recommend that the Re-
spondent's motions that the Board's June 23, 1976 deci-
sion herein be vacated, that the complaint herein be dis-
missed, or that, in any event, Dazzo be refused back-
pay, 102 should be denied
In so concluding, I find no basis for the Respondent's
contention that it had been deprived of a fair hearing by
the General Counsel's initial failure to call Atherton and
because of his unavailability as a witness when this hear-
ing was held. Although Atherton, as noted, had been af-
forded repeated opportunities and strong incentive to
specifically renounce General Counsel's Exhibit 3 as un-
authentic under, oath, includng Weinrich's efforts and his
own 1978 affidavit made to counter Dazzo's lawsuit, he
101 Although I have disagreed with the General Counsel's failure to
introduce G C Exh 3 through Atherton, if at all, I find in the context of
the entire record and the conclusions reached herein that this did not
prejudice the Respondent to such an extent as to vitiate the proceeding in
whole or in part NLRB v Selwyn Shoe Mfg 'Corp, 428 F 2d at 224-225
102 The Respondent 's assertions that Dazzo had perjured himself in
connection with G C Exh 3 and should, therefore, be denied backpay,
are not supported in the record
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not do so In his 1978 affidavit Atherton did not
swear to more than in effect that the General Counsels
Exhibit 3 signature looked like his and that he could not
remember the letter in circumstances where clear recol
lection was reasonably to be expected Moreover that
affidavit was consistent with what he earlier had said
about General Counsels Exhibit 3 to Kent and Atherton
Jr Accordingly it would be speculative to fmd that
Atherton had he been called at the first hearing or avail
able at the supplemental hearing would have provided
credible testimony more helpful to the Respondent
Union than what was sworn to by him in 1978 and pre
sented here in support of the Respondents motions
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed103
ORDER
The motions that the Board s Decision and Order
dated June 23 1976 should be vacated that the corn
plaint herein be dismissed and the order vacated or that
the portion of the Order granting backpay to Anthony
Dazzo be vacated are denied
10' If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all put
poses