R. L. Polk & Co.

National Labor Relations Board - Board Decisions

Apr 14, 1994

313 N.L.R.B. 1069 (N.L.R.B. 1994)

1069
313 NLRB No. 188
R. L. POLK & CO.
1 The Charging Party has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear pre-
ponderance 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 See, e.g., NLRB v. Cutter Dodge, Inc., 825 F.2d. 1375, 1376 (9th
Cir. 1987).
3 The lettershop employees at Taylor were represented by the
Union, while the lettershop employees at Berea were represented by
a different labor organization.
4 On the same date, the General Counsel also withdrew a com-
plaint allegation that the Respondent’s work transfer violated Sec.
8(a)(3) of the Act. The General Counsel’s theory for the withdrawn
allegation had been that the Respondent’s actions were ‘‘inherently
destructive’’ of employees’ rights. The corresponding 8(a)(3) portion
of the Union’s charge was simultaneously dismissed. That dismissal
was later upheld when the Union appealed to the General Counsel.
5 The judge found that the Respondent’s decision to transfer the
unit work from Taylor to Berea was not a mandatory subject of bar-
gaining and was based on legitimate economic reasons other than a
desire by the Respondent to avoid labor costs incurred in Taylor
under the Union’s collective-bargaining agreement.
R. L. Polk & Co. and Local 174, International
Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America
(UAW). Cases 7–CA–22444 and 7–CA–23046
April 13, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On October 28, 1992, Administrative Law Judge
James L. Rose issued the attached decision. The Gen-
eral Counsel and the Charging Party (the Union) filed
separate exceptions and supporting briefs. The Re-
spondent filed answering briefs in response to the ex-
ceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order.
On January 16, 1985, Administrative Law Judge
Peter Donnelly issued his decision in this case in
which he recommended the dismissal of the complaint
in its entirety. On March 12, 1985, the Board issued
an Order adopting, in the absence of exceptions, the
findings, conclusions, and recommendations of Judge
Donnelly, and dismissed the complaint. The case was
then closed.
The questions raised on motions by the Charging
Party and the General Counsel now are whether the
record in this case should be reopened, whether the
dismissed 8(a)(5) complaint should be reinstated and
amended to include an 8(a)(3) allegation, and whether
violations of Section 8(a)(5) and (3) based on the Re-
spondent’s 1983 conduct should be found. It is well
established that the Board has considerable discretion
in deciding whether to reopen the record in a particular
case.2 We agree with Judge Rose’s recommendation
that the record should not be reopened and the com-
plaint should not be reinstated and amended. For the
reasons discussed below, we deny the pending motions
in this case.
The Respondent is engaged in publishing directories,
statistical data, and direct-mail advertising throughout
the United States. In 1983, the Respondent decided to
transfer its lettershop operations at its Taylor, Michi-
gan facility to its Berea, Ohio facility.3 An amended
complaint issued on March 15, 1984, and alleged, inter
alia, that the Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally transferring the lettershop
operations (unit work) from Taylor to Berea.4
In September 1984, the General Counsel served sev-
eral subpoenas duces tecum on the Respondent direct-
ing it to produce certain company documents relating
to the amended complaint’s allegations, including the
unit work transfer issue. In response to these subpoe-
nas, the Respondent produced documents at the begin-
ning of, and during, the hearing before Judge Don-
nelly. After the hearing closed, Judge Donnelly issued
his decision5 which the Board later adopted in the ab-
sence of exceptions.
On December 3, 1990, the Union filed a motion to
reopen record. The General Counsel filed a response
concurring with the Union’s motion and another mo-
tion to amend the complaint to add an 8(a)(3) allega-
tion. The General Counsel and the Union asserted that
they recently had learned for the first time that the Re-
spondent’s compliance with the General Counsel’s
subpoenas in 1984 had been incomplete because the
Respondent had failed to turn over specific company
documents which would have shown that its 1983
transfer decision was motivated by antiunion consider-
ations. The Respondent opposed both motions.
On March 1, 1991, the Board ordered that a hearing
be held on the issues of fact and law raised by the mo-
tions. The Board stated that ‘‘[t]he threshold issue at
such hearing is whether Respondent failed to comply
with the subpoena duces tecum.’’ Pursuant to the
Board’s Order, a hearing on the motions was con-
ducted before Judge Rose.
At the hearing before Judge Rose, the parties stipu-
lated that the following three documents were in exist-
ence in 1984 and were covered by the General Coun-
sel’s 1984 subpoenas: (1) an internal company memo-
randum dated March 31, 1983, from John K. Johnson,
the assistant general manager (production), to Julian
W. Haydon, the general manager of direct mail (mar-
keting services) division; (2) an internal memorandum
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The three 1983 memos are more fully described in sec. II,A, of
the judge’s decision.
7 The General Counsel did not create any list or maintain any in-
ventory of the company documents produced by the Respondent.
8 The other nine boxes of material dealt with another complaint al-
legation unrelated to the work transfer issue.
9 Stevens, who served as the lead trial attorney for the General
Counsel in this case, died in April 1986.
10 Judge Rose also found that Allen arrived at the hearing with a
folder of documents. Whether Allen had the three 1983 memos in
the folder is not known for certain. Allen denied having the folder
with him at all, and he was never asked in 1984 what he had
brought in compliance with the General Counsel’s subpoenas. The
judge found that Allen did have the three memos in his folder and
was prepared to produce them at the 1984 hearing if required to do
so. We find it unnecessary to pass on the judge’s latter finding be-
cause we adopt his finding that the General Counsel failed to show
that the documents in question were not in the boxes of material
provided by the Respondent at the 1984 hearing. There is simply no
credible evidence in the record that Allen ignored O’Hara’s direct
order to comply with the subpoenas.
11 See, e.g., ‘‘[W]here the new evidence only suggests that a wit-
ness might be less than credible, the interest in finality outweighs
the slight possibility of injustice to a party.’’ NLRB v. Jacob E.
Decker & Sons, 569 F.2d 357, 363 (5th Cir. 1978).
12 We stress that the result reached in this case is controlled by
the peculiar facts presented and does not suggest that we condone
anything less than full compliance with Board subpoenas.
13 The judge also recommended denial of both motions based on
two other grounds: (1) the General Counsel had not exercised rea-
sonable diligence in discovering the existence of the three memos in
question before the record closed; and (2) these memoranda, singly
or together, were insufficient to require a different result from that
reached by Judge Donnelly. We find it unnecessary to pass on the
judge’s alternative reasons for denying the motions.
dated April 28, 1983, from Haydon to Ralph L. Polk
Jr., the president; and (3) an internal memorandum
dated May 31, 1983, from Haydon to C. A. Wollenzin
Jr., who was serving as the acting president in Polk’s
absence.6 The General Counsel and the Union jointly
argued, based chiefly on the testimony by Richard
Allen, the Respondent’s former manager of labor rela-
tions, that the Respondent had deliberately withheld
these three memos from the General Counsel. The Re-
spondent countered that Allen’s testimony should be
discredited. According to the Respondent’s position,
these memos had been made available to the General
Counsel or, alternatively, there was insufficient evi-
dence to show that they had not been produced in
1984.
Judge Rose discredited Allen. Based on his credibil-
ity resolutions, the judge found the following facts rel-
evant to the threshold issue of compliance with the
subpoenas.
Richard Allen was in charge of gathering the docu-
ments requested by the General Counsel’s 1984 sub-
poenas. Allen discovered the March 31, April 28, and
May 31, 1983 memoranda, but decided not to say any-
thing about them to the outside labor attorneys who
had been hired to defend the Respondent in the hearing
before Judge Donnelly. Allen viewed the memoranda
as detrimental to the Respondent’s defense to the pend-
ing unfair labor practice charges. However, Allen
asked his superior John M. O’Hara, who was then the
Respondent’s general counsel, for advice as to whether
the Company should provide these three documents to
the General Counsel. O’Hara told Allen to comply
with the subpoenas.
At the hearing, the General Counsel was presented
with 10 boxes of company documents brought to the
hearing room by the Respondent in response to the
outstanding subpoenas.7 One of those boxes conced-
edly contained material relating to the work transfer
issue raised by the complaint.8 James Stevens, counsel
for the General Counsel,9 was principally responsible
for examining the documents in that box for the Gen-
eral Counsel. The record reflects that Stevens did not
look at all the documents in that box or make a list
of that material.10
Judge Rose correctly observed that there is a strong
policy favoring an end to litigation.11 Similarly, he
correctly stated that the General Counsel, the party at
whose request the subpoena duces tecum was issued,
bears the burden of showing noncompliance by the Re-
spondent. Applying this standard, we conclude that the
record does not support a finding that the General
Counsel has established that the March 31, April 28,
and May 31, 1983 memoranda were not proffered to
the General Counsel in the 10th box which contained
the Respondent’s documents relevant to the work
transfer issue. Under these circumstances, we agree
with the judge that the General Counsel failed to meet
his burden of proof and that there was insufficient evi-
dence to show noncompliance by the Respondent.12
On this basis, and given the heavy burden which rests
with the parties seeking at this date to reopen this liti-
gation, we adopt the judge’s recommendation to deny
the motions to reopen the record and to reinstate and
amend the complaint.13
ORDER
The recommended Order of the administrative law
judge is adopted and the motions are denied.
Amy Bachelder, Esq. and George Mesrey, Esq., for the Gen-
eral Counsel.
Paul H. Townsend Jr., Esq. and Charles C. DeWitt Jr., Esq.,
of Detroit, Michigan, for the Respondent.
Nancy Schiffer, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This matter
was tried before me from February 3 through 6 and June 30,
1992, supplementing the hearing commenced by Judge Joel
1071R. L. POLK & CO.
1 Counsel entered into a joint motion to receive exhibits and cor-
rect the official record, which I have marked and entered into evi-
dence as Jt. Exh. 6 and grant.
A. Harmatz on June 24, 1991, subsequent to which he
recused himself.
All parties were represented by counsel and submitted
posthearing briefs. On the record1 as a whole, including my
observation of the witnesses and briefs and arguments of
counsel, I make the following
FINDINGS OF FACT
I. PROCEDURAL HISTORY
On August 4, 1983, Local 174, International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) (the Union or the Charging
Party) filed the charge in Case 7–CA–22444. An order con-
solidating cases, amended complaint and notice of hearing
dated March 15, 1984, recites that another charge was filed
by the Union in Case 7–CA–23046 on January 24, 1984.
This second charge was not among the formal papers.
The amended complaint alleged, in general, that the Re-
spondent violated Section 8(a)(5) of the National Labor Rela-
tions Act by: (1) unilaterally transferring work traditionally
performed by employees at its Taylor, Michigan facility to
its facility at Berea, Ohio, and (2) unilaterally subcontracting
work traditionally performed by employees in the bargaining
unit at the Taylor facility.
In the original complaint, based on the charge in Case 7–
CA–22444, it was alleged that the transfer of work from
Taylor to Berea was violative of Section 8(a)(3) as well as
Section 8(a)(5). With Milwaukee Spring Division, 268 NLRB
601 (1984), there was a shift in Board law and on March 15,
1984, the Regional Director for Region 7 issued an order dis-
missing the 8(a)(3) portions of the charge. The Charging
Party appealed this decision to the General Counsel, who
sustained the dismissal, concluding there was insufficient evi-
dence that the consolidation of work at Berea was motivated
by antiunion considerations to warrant alleging an 8(a)(3)
violation. Thus no such allegation appears in the amended
complaint issued that day.
Further, at the original hearing in this matter before Judge
Peter E. Donnelly, the parties agreed that an 8(a)(3) violation
would not be litigated. However, there was evidence of an
antiunion motive and it was considered by Judge Donnelly,
since the reason for the Company’s decision to consolidate
was the ultimate issue.
The trial was held on September 24–27, 1984. Judge Don-
nelly issued his decision dismissing the complaint in its
entirity on January 16, 1985, concluding that the decision to
transfer work from Taylor to Berea ‘‘was based on business
considerations and while labor costs were considered, the de-
cision did not ‘turn on’ that item.’’ JD–5–85, slip op. at 10.
The subcontracting allegation was apparently considered de-
rivative and was not seriously pursued, the General Counsel
having not even briefed the issue. It was summarily dis-
missed by Judge Donnelly. Id. at 11 fn. 10. No exceptions
were taken and on March 12, 1985, the Board adopted the
findings, conclusions, and recommended Order of Judge
Donnelly.
On December 30, 1990, the Charging Party filed a motion
to reopen record with the Board, contending that in October
1990 it learned that at the time of the trial there existed doc-
uments of the Respondent which show that the transfer of
work from Taylor to Berea was motivated by union animus.
The Charging Party further contended that these documents
were covered by subpoenas duces tecum issued by counsel
for the General Counsel and had not been produced by the
Respondent. The General Counsel filed a response concur-
ring with the Union’s motion to reopen, and subsequently
filed a motion to amend amended complaint to add an
8(a)(3) allegation.
Since a motion to reopen a record after decision by the
Board is controlled by Section 102.48(d)(1) of the Board’s
Rules and Regulations, the issue here is whether the condi-
tions of that section have been met. In pertinent part Section
102.48(d)(1) states:
A motion to reopen the record shall state briefly the ad-
ditional evidence sought to be adduced, why it was not
presented previously, and that, if adduced and credited,
it would require a different result. Only newly discov-
ered evidence, evidence which has become available
only since the close of the hearing, or evidence which
the Board believes should have been taken at the hear-
ing will be taken at any further hearing.
Thus on March 1, 1991, the Board entered an order that
a hearing be held for the purpose of taking evidence on the
issues presented by the Charging Party’s motion, stating, in
pertinent part:
Having duly considered the matter, the Board finds
that Charging Party’s Motion to Reopen raises issues of
fact and law which require a hearing. The threshold
issue at such hearing is whether Respondent failed to
comply with the subpoena duces tecum. (Footnote: A
related issue is whether the evidence concerning any
such noncompliance is newly discovered or was fraudu-
lently concealed.) Assuming that there was such non-
compliance, the next issue is the impact, if any, of the
withheld evidence on the 8(a)(5) issues that were liti-
gated in this proceeding and on any 8(a)(3) issues that
may be appropriately raised.
It appears that the administrative law judge who
heard this case had discussions with the parties, both on
and off the record, concerning compliance with the sub-
poena. Since these discussions may become relevant to
the issues to be raised in the reopened hearing, the
Board considers it appropriate to designate a different
judge to hold such hearing and issue a decision.
I disagree with the General Counsel’s contention that the
Board thereby granted the motion to reopen. It clearly did
not. The Board stated that the motion ‘‘raises issues of fact
and law which require a hearing.’’ Only after an evidentiary
hearing can it be determined whether the factual predicate for
reopening the record has been established. If the facts sup-
port the Charging Party’s contention that the evidence in
question is ‘‘newly discovered’’ within the meaning of Sec-
tion 102.48(d)(1), then the motion should be granted, if that
evidence would require a different result.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Therefore, this proceeding deals with two basic issues: (1)
whether the evidence is ‘‘newly discovered’’ and (2) if so,
whether receipt of the evidence would ‘‘require a different
result’’ than that reached by Judge Donnelly and the Board.
Whether the evidence is ‘‘newly discovered’’ depends on
whether (1) it existed at the time of the trial and (2) the Gen-
eral Counsel was excusably ignorant of its existence. Excus-
able ignorance in turn depends on whether the General Coun-
sel exercised due diligence in discovering the evidence.
Inasmuch as counsel for the General Counsel caused to be
issued a subpoena duces tecum which covers the documents
in question, a threshold issue on the matter of due diligence
is whether there was compliance with the subpoena. In this
proceeding, the General Counsel has the burden of proving
that the Respondent did not comply, which I conclude was
not established. In addition, simply causing a subponea to be
issued does not end the inquiry on the matter of due dili-
gence.
II. ANALYSIS AND FINDINGS
A. The Evidence in Issue
The principal item of evidence which the General Counsel
and the Charging Party contend is newly discovered is an in-
ternal memorandum of the Respondent to C. A. Wollenzin
Jr. (the then acting president during the absence of Ralph L.
Polk Jr.) from Julian W. Haydon, the general manager of the
direct mail (marketing services) division, dated May 31,
1983 (referred to in the record as the Haydon memo).
According to the General Counsel and the Charging Party,
this memo establishes that the motive for the Respondent’s
decision to consolidate the Taylor and Berea operations at
Berea was to rid itself of the Union which represented Taylor
employees.
In substance, the memo outlines Haydon’s understanding
of the background for the Respondent’s determination to
consolidate the Taylor lettershop operation in Berea. In the
second paragraph, Haydon stated, ‘‘On March 15, you sur-
prised me with a very negative assessment of our future with
the UAW and your obviously serious suggestion that we
probably should look for another plant. You disabused me of
the notion that we were trapped with the UAW.’’
The memo’s other references to the Union are: ‘‘While I
was entirely sympathetic with the idea of escaping the UAW
. . . .’’ ‘‘Since closing Taylor was such a major change, we
considered the pros and cons of closing Berea instead. Aside
from the obvious negative of becoming even more vulnerable
to the UAW, the costs of Taylor consolidation were unac-
ceptable as you can see from the next page.’’ ‘‘In addition
to the greater savings by closing Taylor, the consolidation in
Berea: . . . removes us from the UAW and being totally at
their mercy.’’
However, the memo is five pages and deals mostly with
savings associated with closing Taylor and consolidating the
lettershops. The estimated savings set forth by Haydon was
$1,351,400.
There are two other internal memos which the General
Counsel and the Charging Party contend are newly discov-
ered evidence: one dated March 31, 1983, from John K.
Johnson to Haydon and one dated April 28, 1983, from
Haydon to Polk. Neither mention the Union. Both deal with
an analysis of savings should the Respondent close Taylor
and consolidate at Berea and are similar to the Haydon
memo.
A forth memo dated April 5 from Haydon to Polk, which
the General Counsel admits having at the trial, sets forth pre-
liminary estimates of savings and by which Haydon sought
Polk’s agreement in principle to consolidate. This memo was
not offered into evidence by any party.
Prior to the trial in the underlying case, counsel for the
General Counsel caused to be issued 10 subpoenas duces
tecum directed to the Respondent to produce at the hearing
all manner of documents. One set of subpoenas apparently
sought to discover evidence with respect to the refusal-to-
bargain allegation based on consolidating the operations and
the other set had to do with the subcontracting allegation.
Richard Allen, the Respondent’s manager of labor relations,
was one addressee to whom the subpoenas were directed and
it is compliance with these subpoenas which is in issue.
Identical subpoenas were addressed simply to the Respond-
ent, however, compliance with them independent of the
Allen subpoenas is not in issue.
The parties stipulated that the four memos discussed above
were covered by the subpoenas. The General Counsel and
Charging Party contend that three were not produced. They
maintain that these documents were deliberately withheld
from production by the Respondent’s counsel. Therefore they
meet the test of newly discovered evidence—they were in
existence at the time of the trial, counsel for the General
Counsel was excusably ignorant of their existence and exer-
cised reasonable diligence to discover them. Owen Lee Floor
Service, 250 NLRB 651 (1980).
The Respondent agrees that the memos were in existence
at the time of the trial and were covered by one or more sub-
poena. The Respondent contends that they were made avail-
able to counsel for the General Counsel, or, at least, there
is insufficient evidence they were not to justify reopening a
record which has been closed more than 7 years.
B. The Facts in Brief
The Haydon memo is a document dated May 31, 1983, to
be read by him at the meeting of the executive committee
(he and several others) on that day or in early June. Haydon
gave each participant at the meeting a copy. Allen claims to
have had another dozen made and placed in various files in
September 1984, but whether this in fact occurred is uncer-
tain since Allen’s testimony in all material aspects is suspect.
In any event, at all material times, the Haydon memo was
not a single document.
Allen is an attorney and was, in effect, the Respondent’s
in-house labor counsel. He was the liaison between trial
counsel and the Respondent and was the one charged with
collecting material set forth in the subpoena. It was also his
activity in 1990 which resulted in this proceeding and he was
the General Counsel’s principal witness.
The General Counsel argues that Allen should be credited
in most material respects and from his testimony it should
be found that counsel for the Respondent in the underlying
trial fraudulently concealed the three memos, a conclusion
which is inferentially supported by the testimony of others
that they never saw the memos and the memos were not
found in the General Counsel’s file. Thus, a resolution of Al-
len’s credibility is necessary. I discredit his testimony, par-
ticularly where it is in conflict with other witnesses.
1073R. L. POLK & CO.
It is now 8 years since the events in issue and more than
9 since the Company’s decision to consolidate. Thus, it
should come as no surprise that memories are vague, critical
participants are deceased, files have been purged, and in gen-
eral, what actually happened cannot be determined with
much certainty. However, there is no doubt in my mind that
the events did not happen as Allen testified.
Dwight Vincent had represented the Respondent in labor
relations matters for many years. He and a junior partner,
Fred Batten, were counsel for the Respondent in the underly-
ing case, but they do not now represent the Respondent.
Allen testified that he and Batten discovered the Haydon
memo when searching John Johnson’s file in preparation for
the trial in September. Allen testified that on learning this,
Wollenzin was upset and reprimanded him, stating that he
used poor judgment in searching files with an attorney and
that the memo should never have been in corporate files.
Notwithstanding this remonstration by Wollenzin, Allen testi-
fied that he made a dozen copies of the memo and put them
in various files. Such would have been gratuitous insubor-
dination, which is so unlikely I conclude it did not happen.
The General Counsel contends that Allen’s testimony
about when the Haydon memo was discovered is supported
by Batten’s time record which shows that he and Allen re-
viewed Johnson’s file. However, the time record of this event
is for January when they were preparing for the trial then set
to begin on January 30. Though Allen could simply have
been mistaken, I believe he tailored his testimony to put Bat-
ten at the place and time when the memo was discovered.
Similarly, I believe he tailored his testimony about what
Wollenzin (who is now deceased) said in order to establish
the Respondent’s decision to conceal the Haydon memo.
No doubt sometime the Haydon memo came into Allen’s
possession. I do not believe, however, Batten was with him
at the time or that Wollenzin made the comments Allen
claims he did.
Allen testified that on three occasions he talked with Bat-
ten about the Haydon memo having not been produced be-
cause, ‘‘my name was on the subpoena and I was concerned
with the fact that the material hadn’t been—been given to the
NLRB and I remember talking to him about—the word that
recall using—was why wasn’t it introduced as an exhibit.’’
The first time was on the last day of the trial. The second
was shortly thereafter. Allen testified that Batten said the
memo had not been offered into evidence because it was ir-
relevant, the 8(a)(3) allegation having been dismissed.
The third time was in May 1990, about 5-1/2 years later.
Allen testified that he opened this meeting with Batten and
Wollenzin by giving them copies of documents including a
memo dated April 26, 1990, which he had just submitted to
his supervisor, B. A. Bates (who is now deceased):
As you know, I have been concerned for some time
in regard to the failure of the Company to produce a
subpoenaed memo pursuant to the Unfair Labor Prac-
tice Complaint filed by the UAW protesting the transfer
of bargaining unit work from the Taylor Plant to the
Berea Plant. We have previously discussed this matter
and I have always maintained it was wrong and illegal
to withhold the Haydon Memo which was subpoenaed
by the National Labor Relations Board. It was wrong
and fraudulent at the time of the trial, and it continues
to be wrong and fraudulent. If I continue to ignore this
illegal act of non-disclosure, then I shall become a
party to it and this I do not intend to happen.
Since the decision of the N.L.R.B., I have been un-
successful in convincing the Polk management that the
situation must be corrected. The Company must submit
the subpoenaed memo and if necessary settle the case
by the reinstatement of all affected employees, includ-
ing back pay and any other remedy ordered by the
Board or State and Federal Courts.
I have decided to submit the requested memo and re-
port all the circumstances to the N.L.R.B., any appro-
priate State agency and the Judiciary, both State and
Federal, for a final disposition. I am well aware of the
consequences of my reporting this illegality to the au-
thorities, but since this matter has already been delayed
for a very long period of time, I now believe this is the
only course of action that remains.
But Allen did not in fact go to the NLRB, or the Union,
as his memo to Bates stated he would. Instead, he drafted
a settlement document, the essence of which was the Re-
spondent would pay him a pension of about $10,000 per
month.
The Company rejected Allen’s proposal and suspended
him on June 4, 1990, pending investigation of his charges.
The Company retained Theodore Souris, a former Michigan
Supreme Court justice, to investigate Allen’s allegations.
Allen was subsequently terminated, apparently effective June
4.
Allen retained counsel to represent him in an action under
the Michigan ‘‘Wistleblowers’ Protection Act’’ which was
filed on August 28, 1990. Then by letter of September 27,
Allen’s attorney wrote the NLRB Regional Office enclosing
a copy of the state court complaint and requesting a meeting.
On October 18, a second letter from Allen’s attorney was de-
livered to the Regional Office, enclosing a copy of the sub-
poena and the Haydon memo. About the same time, Allen
gave the Union a copy of the Haydon memo.
Allen also gave Batten and Wollenzin an undated, hand-
written memo dealing with his concern that employees laid
off as a result of the move should be given increased pen-
sions.
Batten credibly denied Allen asking him about the memo
during or just after the trial, but he agreed with Allen’s testi-
mony about the meeting in May 1990.
In essence, Allen testified that after more than 5 years he
undertook to correct a grievous wrong which had been both-
ering him all that time and was discharged by the Respond-
ent for doing so. While this issue is for another tribunal to
decide, the facts bear on Allen’s credibility. I do not believe
him.
John M. O’Hara is now the Respondent’s chairman and
chief executive officer. At the time of the underlying hearing,
he was the general counsel, but in such capacity had minimal
involvement in the proceeding. O’Hara credibily testified that
Allen ‘‘was not performing his job as a manager and I was
looking for a replacement and talked to people in January of
1990 on interviewing a person to replace him.’’
Although Allen claims to have had discussions about his
concern with Wollenzin just after the trial and on other occa-
sions, and with Bates as early as November 1988, the written
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record he developed began in April 1990—after O’Hara
began searching for a replacement.
The long lapses of time are simply not consistent with Al-
len’s professed feelings of remorse. He waited 5-1/2 years
after the trial before writing his first memo to Bates. In this
he said he intended to rectify the problem by going to the
NLRB. But he did not. Instead he offered the Respondent a
settlement on very favorable terms to himself. This was re-
jected. He retained counsel and filed a lawsuit and only then
did he approach the Board and the Union. His actions belie
an intent to inform the Board. Rather, it appears, and I con-
clude, that Allen knew he was about to be replaced and un-
dertook to make a record in support of an action against the
Company. I simply do not believe his alleged discussions
with the deceased Wollenzin and Bates.
Although his lawsuit is independent of this matter, because
of it he had a substantial pecuniary interest framing his testi-
mony here. This fact along with his demeanor leads me to
conclude that his testimony is not worthy of belief. I believe
the events involving the Haydon memo took place differently
than Allen testified.
Vincent testified that he first saw the Haydon memo in
June 1990. He did not recall seeing it during the trial or dur-
ing his preparation and further, had he seen it ‘‘I think I
would have recalled it.’’ However, he was not the one who
searched the Respondent’s files for documents in response to
the subpoenas, nor did he go through the documents in the
boxes of documents brought to the hearing room.
Vincent credibly testified: ‘‘Here’s my problem. I lost con-
trol of the documents with those because I normally try and
do is get copies of them but there’s beginning in such large
number that I didn’t have copies of them. He [Allen] just
brought the box of documents. I didn’t have copies of them
and I didn’t even have an opportunity to even look at them,
so I have no idea what was in there.’’
In addition, he testified that he does not recall seeing the
April 28 and March 31 memos and believes he would have
remembered them since they dealt with costs. Only a copy
of the April 5 memo appeared in his file.
Batten also credibly testified that he first saw the Haydon
memo sometime in May 1990 when he met with Allen and
Wollenzin. He further testified that he reviewed his firm’s
file in the underlying case and found there only the April 5
memo. There were no copies of the March 31, April 28, or
May 31 memos. Finally, Batten testified that he believes he
would have remembered the Haydon memo had he seen it
during the course of the trial or preparation for it. And, as
with Vincent, he did not go through the documents in the
boxes brought to the hearing room in response to the General
Counsel’s subpoenas.
Vincent and Batten testified that one of the boxes of docu-
ments brought to the hearing room was material gathered by
Allen. This is corroborated by the testimony of Roman Zych
in the underlying hearing. The Respondent produced 10
boxes of documents, 9 of which were brought by Zych and
dealt with the subcontracting issue. He testified, ‘‘Well, I
think I brought nine. I think one then is Rich Allen’s.’’
Vincent and Batten also testified that on the opening day
of the hearing Allen came with a folder of documents (which
Allen denied, testifying he brought only a note pad); but nei-
ther knew what was in the folder.
O’Hara credibly testified that when Allen received the
subpoenas he called stating he would like to talk—O’Hara
being the Respondent’s general counsel at the time. Allen
came to O’Hara’s office and they talked about the subpoena,
and they discussed the Haydon memo. He testified, ‘‘we
talked about the memo and he said he was concerned be-
cause the union had friends out at Taylor and he thought
they already had a copy; and I said to him, if they do, they
do, it’s your job to produce the documents and, you know,
you’re the one subpoenaed, if I can help you in production,
I’ll be glad to.’’
Betsey Engel is an attorney employed by the International
Union, UAW. During the underlying proceeding, she rep-
resented the Charging Party and assisted counsel for the Gen-
eral Counsel.
Engel testified that she first saw the Haydon memo in Oc-
tober 1990, a copy of which was given to her by an agent
of the Union who in turn had received it from Allen. Engel
stated that she did not see the memo during the underlying
trial and had she, she would have remembered it because of
the references to the Union. She characterized it as ‘‘the ver-
itable smoking gun.’’ She also testified that she did not see
the memos of March 31 and April 28 before or during the
underlying trial.
James Stevens was counsel for the General Counsel. He
also is now deceased. His co-counsel was Laura Goodman.
In September 1984, Goodman had been an attorney in the
General Counsel’s Division of Advise for about 1=1/2 years.
She was given a 10-day detail to Detroit for the purpose of
assisting in the trial of the underlying case. She had not be-
fore participated in a trial, and her duties were, basically, to
do what Stevens told her.
Goodman testified that she was present when Stevens and
the Respondent’s counsel discussed subpoenas and she went
to the Taylor facility during the trial to look for documents.
She further testified that at the end of the third day of the
hearing, Vincent handed over some additional documents
saying that he had not been given them before. Stevens went
through the documents as did Goodman.
Finally, she testified that she first saw the Haydon memo
in late November or early December 1990 and was ‘‘abso-
lutely sure’’ she did not see it during the trial because ‘‘the
words escaping the UAW in 1984 would have been a real
red flag to me.’’
I credit the testimony of Vincent, Batten, Engel, and
Goodman that none of them saw any of the memos before
or during the trial. I believe the testimony of each that he
or she would have remembered the Haydon memo.
And I credit O’Hara. Although he is now the Respondent’s
chairman and has a clear interest in the outcome of this liti-
gation, I found him believable and his demeanor positive.
His testimony in all respects seems feasible.
On the other hand, I believe it was to Allen’s perceived
interest to construct his testimony such that there was con-
cealment of the memos by agents of the Respondent, with
himself simply a bystander who spoke out for their produc-
tion. From all the credible evidence, I conclude this was not
the case. Rather, the most probable sequence of events was:
The initial setting for the underlying case was January 30,
1984, in preparation for which, among other things, Batten
and Allen examined company files, including John John-
son’s. Batten’s time record, but not his memory, confirm
1075R. L. POLK & CO.
this. But the Haydon and other memos were not discovered
at this time. The trial was continued twice and finally set to
begin September 24. Prior to this Allen was served with the
subpoenas and was instructed to gather documents in re-
sponse. Then he found the memos, and recognizing the nega-
tive import of the Haydon memo, he took it on himself not
to tell outside counsel. He did, however, ask the Respond-
ent’s general counsel for advise and was told to comply with
the subpoena.
Thus, I believe, Allen arrived at the hearing with the
memos and was prepared to testify and produce them, as he
had been instructed. However, he was not called as a wit-
ness, nor was he asked by anyone what he had brought in
compliance with the subpoena. And the trial ended without
Allen having disclosed the memos. This was where the mat-
ter lay until 5-1/2 years later, when Allen learned he was
about to be terminated from his job. Remembering the
memos, he undertook to make a record which would support
a claim against the Respondent.
Allen sought to distinguish the Haydon memo from the
other three, testifying that he found them in July or August
under circumstances he cannot remember, whereas he found
the Haydon memo with Batten in September. Assuming he
had the four memos and showed them to counsel, it defies
belief that they would not have produced the three which
made no mention of the Union. They support the Respond-
ent’s theory in the underlying case and do not in any way
reflect union animus. The most probable explanation is that
Allen came across them after counsel had settled on the doc-
uments they intended to use and Allen did not bring them
to counsel’s attention. While these memos support the Re-
spondent’s case, the facts contained in them were available
in other documents and were entered into evidence.
C. Analysis
The Board has repeatedly held that newly discovered evi-
dence to support a motion to reopen under Section
102.48(d)(1) ‘‘is evidence which was in existence at the time
of the hearing, and of which the movant was excusably igno-
rant. A motion seeking to introduce evidence as newly dis-
covered must also show facts from which it can be deter-
mined that the movant acted with reasonable diligence
. . . .’’ Owen Lee Floor Service, 260 NLRB 651 fn. 2
(1980). Further, ‘‘the evidence must be so material as to re-
quire a different result.’’ Labor Services, 265 NLRB 463 fn.
3 (1982). And finally, evidence which simply goes to im-
peachment of a witness is not sufficient to reopen a record.
NLRB v. Jacob E. Decker & Sons, 569 F.2d 357 (5th Cir.
1978).
I conclude that the motion to reopen should be denied be-
cause: (1) the General Counsel did not exercise reasonable
diligence in discovering the Haydon and other two memos
and (2) none of the three memos, singly or together, is suffi-
cient to require a different result from that reached by Judge
Donnelly.
1. Reasonable diligence
In its Order, the Board stated, ‘‘The threshold issue at
such hearing is whether Respondent failed to comply with
the subpoena duces tecum. (Footnote: A related issue is
whether the evidence concerning any such noncompliance is
newly discovered or was fraudulently concealed.)’’ The evi-
dence is inconclusive on this point. However, I do conclude
there is a presumption of regularity. Absent definitive evi-
dence to the contrary, I conclude that compliance with the
subpoena must be presumed.
A subpoena duces tecum is a writ which requires the per-
son to whom it is addressed to appear in court at a particular
time and bring the designated documents. In order to estab-
lish noncompliance, at a minimum, the counsel who re-
quested the subpoena be issued must ask the party subpoe-
naed for the documents. That was not done here. The credi-
ble testimony is that Allen in fact came to the hearing on
the day designated in the subpoena and had with him some
material. It is unknown whether he had the Haydon or other
two memos. But counsel for the General Counsel did not call
him as a witness or even ask whether he had brought any
subpoenaed documents.
Therefore, I conclude there is an insufficient predicate to
find that the Respondent failed to comply with the subpoena
duces tecum. Research has disclosed no case (Board or
court) wherein noncompliance with a subpoena was found
absent the subpoenaed individual being called as a witness.
Unless and until the individual subpoenaed has been put on
the witness stand and there states that he will not testify or
submit the documents, there is no basis to conclude he has
not complied.
Counsel for the General Counsel failed to follow up on the
subpoena and make some effort to determine what Allen had
brought to the hearing. The fact that counsel requested a sub-
poena be issued does not itself establish that he exercised
due diligence.
I believe that Allen did all he was required to do in com-
pliance with the subpoena. He was present at the time stated
and had, at least, the three memos. Stevens did not complete
the process and call Allen as a witness as he had Zych, an-
other representative of the Respondent who was charged with
bringing subpoenaed documents.
In addition, even if Allen did not comply with the sub-
poena, I conclude that counsel for the General Counsel did
not exercise due diligence. Indisputably, he had the April 5
memo from Haydon to Polk which set forth an analysis of
the cost consequences of consolidating the Taylor lettershop
operation at Berea. He could easily have called Haydon and
asked if he wrote any additional memos on this subject. He
could have asked Harvey Hays, who was a witness, about the
April 5 memo and any others; but he did not. Stevens did
ask Hays about the June meeting (at which Haydon read his
May 31 memo) and whether there were documents passed
out at the meeting and ‘‘whether any of the other participants
at the meeting had any other documents with them?’’ Hays
responded, ‘‘I don’t recall. I assume they did; I really don’t
know.’’ Had this line been pursued with other witnesses, in
all probability Stevens would have discovered the May 31
memo, if in fact he did not know about it at the time.
During the examination of Hays, Stevens made assertions
that counsel for the Respondent had not produced everything
that had been under subpoena, and that he had just received
additional documents. Stevens asked for, and received, an
overnight recess.
Whether the May 31 memo and the two others were pre-
sented at this time is unknown. It is known that Stevens did
not call either Allen or Haydon, choosing, apparently, to rely
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on counsel for the Respondent, even though, according to
Engel and Goodman, Stevens and they did not believe the
Respondent’s counsel was forthcoming in the production of
documents. I conclude that one cannot be found diligent in
claiming reliance on representations he does not believe.
In any event, an attorney can only represent what he has
been told by his client, and for subpoena compliance pur-
poses, what he has been given. An attorney is not the custo-
dian of his client’s files. Thus, if Stevens was concerned
about the completeness of production pursuant to the sub-
poena, the subpoenaed witness should have been called and
interrogated. Simply relying on the representations of counsel
cannot be deemed due diligence if there is any question con-
cerning compliance.
Of course, when counsel makes representations, such are
binding on his client. E.g., Sonicraft, Inc., 295 NLRB 766
(1989), where counsel erroneously told a Board field exam-
iner that a tape was unintelligible and refused to produce it.
Here, had counsel for the Respondent been asked if Allen
had brought any internal memos, their negative reply would,
I believe, be sufficient to establish noncompliance. But there
is no evidence they were asked anything along this line. At
the outset of the hearing Vincent announced that Allen was
there in response to the subpoena. Vincent was never asked
what Allen brought.
Vincent did testify that on the third day of the hearing,
when Stevens asked if the documents he had been given was
all they had, Vincent in turn asked Allen, who replied in the
affirmative. Such would be some evidence that Allen (and
therefore the Respondent) concealed the memos. Allen de-
nied he was in the hearing room at the time, having been se-
questered for the testimony of Harvey Hayes. This assertion
tends to be supported by the record in the underlying case.
Batten testified that Allen was present. Engel did not remem-
ber. Goodman testified, ‘‘I don’t remember him being
present.’’ The record is just too ambiguous to find that Allen
was present at this time and made a statement to the effect
that the Respondent had given counsel for the General Coun-
sel all the material under subpoena. Further, even if this hap-
pened as Vincent testified, it would not have relieved the
General Counsel from calling Allen, or others. And, as noted
above, counsel for the General Counsel and Charging Party
did not believe Vincent’s representation; therefore, they can-
not claim reliance on it.
It should here be noted that the Board’s Rules and Regula-
tions do not provide for pretrial discovery. Though counsel
are typically cooperative, as were Vincent and Batten in
meeting with Stevens the week before the trial, under the
Rules the General Counsel has no right to expect that a re-
spondent’s counsel will produce documents, whether or not
they have been subpoenaed. In order to get documents, a
subpoena must be issued and the witness interrogated. I do
not believe simply issuing a subpoena and asking counsel
about it in general terms amounts to due diligence.
Such would be close to asking counsel if he had any docu-
ments which would support the General Counsel’s case. I do
not believe that a negative reply by Respondent’s counsel
would prove due diligence on the part of counsel for the
General Counsel.
If, as in Sonicraft, a company’s attorney makes a statement
of fact to an examiner—that the tape of a meeting is
undecipherable—then such can be relied on. But general
questions cannot. If the General Counsel issues a subpoena
for documents, in order to establish that there was no com-
pliance, a record must be made. At a minimum, the witness
must be asked what he brought in compliance with the sub-
poena. That was not done here, even through counsel.
Beyond this is the doubt that the Haydon memo was not
made available to Stevens. The Respondent brought a box of
documents (in addition to the nine boxes of material dealing
with subcontracting) to the hearing room and offered them
for inspection. Neither Vincent nor Batten knew what was in
the box. Again, Allen, who was responsible for the docu-
ments, was not called as a witness.
It was principally Stevens who examined the documents.
He could well have seen the Haydon and other memos and
concluded they were simply more evidence supporting the
Respondent’s position and determined to ignore them. As
noted, he had the April 5 memo and did not use it. Even
though the Haydon memo makes adverse comments about
the Union, its tenor is as supportive of the Respondent’s case
as the General Counsel’s. If Stevens had offered it into evi-
dence, the Respondent would likely have called Haydon to
explain it and such would have added to the Respondent’s
proof.
To summarize: I discredit Allen and conclude he came to
the hearing with a file folder of documents, including the
three memos in question, as he had been instructed by
O’Hara. Vincent and Batten were not aware of the memos
and did not know what Allen had. Stevens did not call Allen
as a witness or ask what he had brought in response to the
subpoena. Thus, I conclude that if Stevens did not in fact see
the three memos, he did not exercise due diligence discover-
ing them.
The evidence is simply insufficient to conclude that the
General Counsel was excusably ignorant of the Haydon and
other two memos. The strong policy that there must be an
end to litigation cannot be overcome by such insubstantial
evidence.
2. Impact of the memos
Assuming that the General Counsel was excusably igno-
rant of the three memos, and did exercise due diligence, the
motion to reopen should not be granted because this evi-
dence would not require a different result than that reached
by Judge Donnelly on the issues he heard. Accepting Judge
Donnelly’s credibility findings and general analysis, I con-
clude that the addition of these memos would have added to
the Respondent’s argument that its decision to consolidate
turned on cost factors well beyond labor costs.
At best the Haydon memo contains language which could
be construed as an understanding on Haydon’s part that it
was desirable to get rid of the Union as the employees’ bar-
gaining representative. Such a motive would tend to negate
the Respondent’s contention that other factors dominated.
However, there was other evidence before Judge Donnelly on
this issue, namely undenied statements attributed to John
Johnson, Dan Harvey, and Allen to the effect that Respond-
ent sought to rid itself of labor costs incurred under the
UAW contract. Judge Donnelly credited this evidence, but
nevertheless concluded, ‘‘A careful and balanced review of
the evidence convinces me that the decision, which was not
made by Johnson, Harvey, or Allen, but by Wollenzin, was
1077R. L. POLK & CO.
based on business considerations and while labor costs were
considered, the decision did not ‘turn on’ that item.’’
For purposes of determining whether certain evidence
would justify reopening a closed record, I must accept Judge
Donnelly’s findings and analysis and add to that the new evi-
dence. If then a different result is required (not just possible)
the motion to reopen should be granted. It would be inappro-
priate for me to attempt to decide the case de novo and
would be contrary to the Board’s orders, including the Order
of June 25, 1991.
Since the Haydon memo cuts both ways—some parts in
favor of the General Counsel’s theory, some in favor of the
Respondent’s—I conclude its receipt into evidence would not
require a different result than that reached by Judge Donnelly
on the 8(a)(5) allegation. Similarly, the other two memos are
strong support for the Respondent’s theory.
It should be noted here that Judge Donnelly relied on Otis
Elevator Co., 269 NLRB 891 (1984), in accessing the impact
of labor costs. Although the Board changed its analytical ap-
proach in Dubuque Packing Co., 303 NLRB 386 (1991), for
purposes of determining the impact of the evidence on the
underlying case, the law at the time would seem applicable.
In Dubuque, the Board stated that ‘‘we have endeavored to
develop a test that provides guidance and predictability to the
parties.’’ Id. at 390. Such suggests prospective application of
the principles therein, at least in cases other than Dubuque
itself. To say that the Dubuque analysis applies here and that
the Haydon memo would require a different result would
necessarily mean relitigation of the underlying case. Such a
result would certainly be contrary to a policy of finality of
litigation.
Further, the antiunion comments in the Haydon memo
really would have done little to support the General Coun-
sel’s case. There was no 8(a)(3) issue to be litigated, thus
evidence of animus was irrelevant. The underlying case was
tried solely on 8(a)(5) theories. Perhaps with the Haydon
memo, the General Counsel would have moved to amend the
complaint to add an 8(a)(3) allegation and perhaps it would
have been allowed; but not necessarily.
As noted above, the Union had charged that the Respond-
ent’s activity violated Section 8(a)(3), but this was ultimately
dismissed (on March 15, 1984) and the case was tried only
on 8(a)(5) theories. Here, the General Counsel and Charging
Party contend that if the Haydon memo had been produced,
then the complaint would have been amended and an 8(a)(3)
violation found.
But the Haydon memo does not per se establish an 8(a)(3)
violation, and it does contain information adverse to the Gen-
eral Counsel’s theory. And such an amendment to the com-
plaint would no doubt have resulted in a continuance of the
hearing, which was first set in January 1984 and had already
been continued twice.
Though the law on amending a complaint to include a dis-
missed allegation after running of the 10(b) period was in a
state of flux, it is possible that the 8(a)(3) allegation sought
here is closely related to the 8(a)(5) allegation litigated.
Thus, a ruling to allow an amendment might have been sus-
tained, notwithstanding the Board’s decision in Ducane Heat-
ing Corp., 273 NLRB 1389 (1985), filed just before Judge
Donnelly’s decision was transferred to the Board. Though
decided some 3-1/2 years later, Redd-I, Inc., 290 NLRB 1115
(1988), would seem to support such an amendment, had it
been made at the time of the trial.
It is, however, by no means certain that in early 1985, the
Board would have sustained a decision to allow an 8(a)(3)
amendment to the complaint. Similarly, it is speculation to
conclude that Stevens did not see the Haydon memo and that
had he, he would have moved to amend the complaint. In-
deed some evidence of an antiunion motive was in the record
and uncontested, but Judge Donnelly discounted it was the
motivating cause of the consolidation. I conclude that to re-
vive a case which has been closed more than 7 years must
be based on more than legal and factual surmise.
Had the Haydon memo been received by Judge Donnelly
and the complaint amended to add an 8(a)(3) allegation, it
is unlikely the result would have been different. There was
no evidence of general antiunion motive by the Respondent,
as the General Counsel concluded in affirming the Regional
Director’s dismissal of the 8(a)(3) charge. There was evi-
dence of the Respondent’s intent to avoid the costs of the
collective-bargaining agreement with the Union.
Thus, even with the Haydon memo, the total record would
not support finding an 8(a)(3) violation. The antiunion com-
ments by Haydon refer to labor costs in the contract. That
the Company wanted to get out from under these costs was
considered by Judge Donnelly. The Company did not intend
to rid itself of a union representing its employees, since the
Berea employees were also represented by a labor organiza-
tion. The consolidation here was consistent with the Compa-
ny’s past practice of closing lettershop operations. During
Haydon’s tenure, the number of lettershops had been reduced
from 9 or 10 to the 2 at Taylor and Berea. From the testi-
mony of Haydon and O’Hara, along with Judge Donnelly’s
findings, even if the memo established a prima facie case, I
believe it was rebutted.
Finally, the General Counsel argues that the Haydon
memo tends to undermine the credibility of Wollenzin. Such
is an insufficient basis to reopen a record, even with newly
discovered evidence. Field Bridge Associates, 306 NLRB
322 (1992). The fact that the memo might have affected
Wollenzin’s credibility, which is far from certain, does not
mean that Wollenzin would have been discredited by Judge
Donnelly.
The Charging Party contends that the Haydon memo
proves that Wollenzin committed perjury—that his testimony
conflicted with statements by Haydon in material respects.
Thus, the record should be reopened, citing Inland Container
Corp., 273 NLRB 1856 (1985). Unlike Inland, the memo is
not a statement by Wollenzin in direct conflict with his testi-
mony. It is a statement by someone else from which a dif-
ferent conclusion could be reached concerning material facts
than those testified to Wollenzin. As such, Inland Container
is inapposite.
If counsel for the General Counsel had had the Haydon
memo and used it to cross-examine Wollenzin, perhaps he
would have developed inconsistencies which would have af-
fected Judge Donnelly’s credibility resolution. Perhaps not.
Haydon’s statements in the memo are not so contrary to
Wollenzin’s testimony to require the conclusion that
Wollenzin committed perjury, or even that his version of the
events was not accurate.
Along with the Charging Party’s motion to reopen, the
General Counsel has moved to amend the complaint now to
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
include an 8(a)(3) allegation. For all the foregoing reasons,
that motion should be denied. In addition, I note that only
if Judge Donnelly’s dismissal of the complaint is reversed,
would there be a live charge to support the proposed amend-
ment. If, as I conclude, the Haydon memo would not require
a different result than that reached by Judge Donnelly, then
there is no complaint to amend. Thus, the proposed amend-
ment is in the nature of a new allegation filed more than 6
months after the events alleged. Accordingly, it would be
barred by Section 10(b). Even Redd-I requires a live charge
before an amendment would be allowed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Charging Party’s motion to reopen record and the
General Counsel’s motion to amend the amended complaint
are denied.