Mid-Con Cables, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1981

256 N.L.R.B. 720 (N.L.R.B. 1981)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mid-Con Cables, Inc. and District No. 174, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, Petitioner. Case 17-RC-
9075
June 18, 1981
DECISION AND ORDER REMANDING
The National Labor Relations Board has consid-
ered objections to an election held August 29,
1980,1 and the Hearing Officer's Report recom-
mending disposition of same. The Board has re-
viewed the record in light of the exceptions and
briefs, and hereby adopts the Hearing Officer's
findings and recommendations, 2 as modified below.
The Employer has excepted to the Hearing Offi-
cer's refusal to permit it to cross-examine the Peti-
tioner's witness, Diana Green. We find merit in the
Employer's contention.
The Petitioner called and questioned employee
Green. Green testified regarding her activities as an
in-plant organizing team member, her attendance at
a meeting at the union hall, her knowledge as to
any flat tires on employee cars, and her knowledge
as to whether union members had bought or of-
fered to buy meals for employees. Green testified
at the end of the day's hearing. After eliciting the
aforenoted testimony, the Petitioner's counsel
stated, "We will have to recall her tomorrow."
Thereupon, the Employer's counsel stated, "I will
reserve my cross-examination for tomorrow."
On the following day, the Petitioner's counsel
decided not to recall Green. At that point, the Em-
ployer's counsel requested an opportunity to cross-
examine Green. 3 The Hearing Officer, apparently
concluding that the Employer's counsel intended to
question Green on matters going beyond the scope
of direct examination, would not permit Green to
resume her testimony. The Hearing Officer further
rejected the Employer's request to call Green as its
own witness.
In regard to representation hearings, the Board's
Rules provide that all parties have a right to call,
examine, and cross-examine witness. 4 We agree
I The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The tally was: 78 for, and 59 against, the
Petitioner; there were 2 challenged ballots, an insufficient number to
affect the results.
2 In light of our decision that a remand is necessary in this case, we
shall not pass at this time on the Hearing Officer's findings and reconm-
mendations regarding the objections to the election.
3 We reject the Petitioner's contention that the Emplioyer waised its
right to cross-examine Green. Under the abohe-noled circurnstances, the
Employer's counsel could properly rescrse cross-examination based n
the Petitioner's representation that (Green would he recalled
4 Sec 102.66(a) of the National l.abor Relatiotns Board Rules and Reg-
ulations. Series 8, as amended, is as follows
256 NLRB No. 120
with the Employer that it had a right to cross-ex-
amine Green.
In presiding over a hearing, a hearing officer has
an obligation to inquire fully into matters in issue
and to obtain a full and complete record. Certainly,
in fulfilling his or her obligations, a hearing officer
must also endeavor to preclude the introduction of
irrelevant or immaterial evidence. A hearing officer
should prevent "fishing expeditions" or other im-
proper examination by the parties. However, where
a witness has testified on direct examination, a
hearing officer cannot, consistent with the rights of
the parties, preclude any and all cross-examination
of that witness. It is not within the discretion of a
hearing officer to decide, prior to any cross-exami-
nation, that such cross-examination of a witness
will elicit cumulative or irrelevant evidence or be
otherwise improper.
In this case, the Hearing Officer should have
permitted the Employer an opportunity to cross-ex-
amine Green. If, thereafter, and in accord with the
apparent expectations of the Hearing Officer, the
Employer engaged in any improper questioning,
objections to that questioning would be properly
sustained. However, the Hearing Officer was pre-
mature and in error in denying the Employer any
opportunity whatsoever either to cross-examine
Green or to call Green as its own witness.
In these circumstances, we deem it appropriate
to remand this case for further proceedings consist-
ent herewith.
ORDER
It is hereby ordered that the hearing in this pro-
ceeding be, and it hereby is, reopened for the limit-
ed purpose of permitting the Employer an opportu-
nity to cross-examine, or to call as its own witness,
employee Diana Green.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 17 for the purpose of conducting
such further hearing and issuing a supplemental
report thereon, and that the Regional Director be,
and he hereby is, authorized to issue notice thereof
to all parties.
Any parts shall have the right to appear at any hearing in person,
by counsel, r by other representative, and any part) and the hear-
irg officer shall hase power to call, examine, and cross-examine wit-
nlesses and to introduce into the record documentary and other evi-
dence. Witinesses shall he examined orall> under oath The rules of
Cvidence prevailing irl courts of law or equity shall not be control-
ling StipulatiolTs oIf fact ay he itltroduced in elidence with respect
ti arls issue