Service Garage, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1981

256 N.L.R.B. 931 (N.L.R.B. 1981)

SERVICE GARAGE, INC. 931
Service Garage, Inc. and Highway & Local Motor
Freight Employees, Local 667, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 26-CA-7575
June 25, 1981
SUPPLEMENTAL DECISION AND
ORDER
On February 7, 1980, the Board issued its Deci-
sion and Order in this proceeding.' Thereafter,
while the General Counsel's petition for enforce-
ment of that Decision and Order was pending
before the United States Court of Appeals for the
Sixth Circuit, Respondent informed the Board of
allegations that William A. Perry, who the Board
has found was discharged by Respondent in viola-
tion of Section 8(a)(3) and (1) of the Act, had
given false testimony at the original hearing in this
case. Based on an independent investigation of this
allegation, the Board sought and received remand
of the record from the Sixth Circuit. Thereafter, by
Order dated February 27, 1981, the Board remand-
ed this proceeding to the Regional Director for
Region 26 for the purpose of conducting a hearing
before an administrative law judge on issues raised
by Perry's alleged false statements.
On April 21, 1981, Administrative Law Judge
Hutton S. Brandon issued the attached Supplemen-
tal Decision in this proceeding. Thereafter, Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a supporting brief.
The Board has considered the record and the at-
tached Supplemental Decision in light of the ex-
ceptions, cross-exceptions, and briefs and has decid-
ed to affirm the rulings, findings, and conclusions
of the Administrative Law Judge and to adopt his
recommneded Order, as modified herein.
At the hearing on remand, Perry admitted that
he had falsified his age and work experience on his
application for employment with Respondent and
that he had reiterated the age falsification at the
original Board hearing. According to Perry, he lied
at the hearing to protect the job he held with an-
other employer on that date, a job he also obtained
by overstating his age. Contrary to prior statements
given, Perry was younger than the minimum 21-
year hiring age at the time of his hiring by both
Respondent and the other employer.
Based on Perry's admissions, the Administrative
Law Judge found that Perry "willfully, deliberate-
ly, and intentionally" lied about his age at the
Board hearing. He further found that no mitigating
' 247 NLRB 943
256 NLRB No. 153
circumstances justified Perry's misstatements. Fi-
nally, the Administrative Law Judge credited the
testimony of Respondent's supervisor, Jon Scott,
who stated that he first learned of Perry's age falsi-
fication at the remand hearing. Scott also credibly
testified that Respondent does not generally hire
mechanics under 21 years of age and he would not
have hired Perry had he known his true age.
For reasons set forth in the attached Supplemen-
tal Decision, the Administrative Law Judge found,
and we agree, that Perry's false statements had no
effect or impact on the unfair labor practice find-
ings and conclusions in the Board's original Deci-
sion and Order. The Administrative Law Judge
concluded, however, that Perry's prevarications at
the original hearing constituted an abuse of Board
procedures "by deliberate and malicious conduct"
which required forfeiture of his remedial right to
reinstatement and limitation of backpay due from
the time of Perry's discharge only until the date of
the initial Board hearing.
We disagree with the Administrative Law
Judge's finding that Perry's admitted lying about
his age at the first hearing was sufficiently egre-
gious to warrant the Administrative Law Judge's
stated limit on remedy. Although Perry's conduct
was deliberate and willful, we do not find that it
was intended or in effect amounted to a malicious
abuse of the Board's processes under circumstances
which require forefeiture of remedy to effectuate
the purposes of the Act. See Iowa Beef Packers,
Inc., 144 NLRB 615, 622 (1963); and D. V Copying
and Printing, Inc., 240 NLRB 1276, fn. 2 (1979).
Perry's lie to protect his current job was a decep-
tion which, although not to be condoned, did not
go to the heart or even to the periphery of the
Board's processes. In the absence of any evidence
that Perry did or was even attempting to under-
mine the Board's unfair labor practice proceedings,
we do not consider it necessary to penalize him for
immaterial false testimony which for practical pur-
poses has outlived its usefulness. 2
On the other hand, we find that the discovery of
Perry's original falsification of critical employment
application information bars his entitlement to rein-
statement and any backpay. On several occasions
the Board has held that a discriminatee's right to
reinstatement and backpay will be forefeited if a re-
spondent affirmatively proves that it would not
have hired the employee but for its reliance on ap-
plication information whose falsity was discovered
subsequent to the employee's unlawful discharge.
W. Kelly Gregory, Inc., 207 NLRB 654 (1973); Na-
tional Packing Company, Inc., 147 NLRB 446, 458
2 Perr hecanie 21 years old on March 14. 1981
SERVICE GARAGE, INC !
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1964); Southern Airways Company, 124 NLRB 749,
752 (1959), modified 290 F.2d 519 (5th Cir. 1961).
See also Westinghouse Learning Corporation and
Westinghouse Learning Corporation (Indiana), 211
NLRB 19 (1974). Here, based on Supervisor
Scott's credited testimony, we find that the Re-
spondent had a policy of not hiring applicants who
were under 21 years of age and that it would not
have hired Perry if his true age had been known.
Therefore, we shall not order that Perry be rein-
stated or awarded backpay.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Service Garage, Inc., Memphis Tennessee, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Board's original Decision
and Order in this proceeding issued on February 7,
1980 (247 NLRB 943), except that Respondent is
not required to reinstate William Perry nor provide
him with backpay.
SUPPLEMENTAL DECISION
HUTTON S. BRANDON, Administrative Law Judge: On
February 7, 1980, the Board issued its initial Decision in
this matter, 247 NLRB 943, finding that Service Garage,
Inc., herein called Respondent, had violated Section
8(a)(1) of the Act by informing employees that an antici-
pated 7-percent wage increase was denied them because
of their union activity and violated Section 8(a)(3) and
(1) of the Act by denying to its employees an anticipated
7-percent wage increase by discharging its employee
William Perry on January 9, 1979, and by laying off its
employee Johnny Wood on January 9 through January
17, 1979, all for the purpose of discouraging employees
from supporting the Union. As a remedy for the viola-
tions found, the Board ordered Respondent to cease and
desist from its unfair labor practices and take affirmative
action to remedy such practices including, inter alia, the
reinstatement with backpay of William Perry. A petition
for enforcement of the Board's Order was filed with the
United States Court of Appeals for the Sixth Circuit.
Thereafter, Respondent's counsel advised the Board that
discriminatee Perry gave false testimony at the hearing
about his age and in support thereof enclosed a copy of a
birth certificate indicating that Perry was born on March
14, 1960. This was said to conflict with Perry's testimony
at the initial hearing that he was 23 years old at the
time.'
Based on the evidence submitted to the Board by Re-
spondent's counsel and as a result of an independent in-
vestigation by Region 26 of the Board, the Board author-
ized the General Counsel to seek from the court a
remand of the record in the case so that the Board could
The hearing took place on May 2 and 3, 1979, before Administrative
Law Judge Elias C. Rodriguez whose Decision in the matter issued on
June 29, 1979.
conduct a hearing to ascertain the nature and extent of
Perry's false statements, the existence of any mitigating
circumstances for the statements made, and effect of the
statements upon the Board findings and conclusions con-
cerning Perry's discharge and remedy therefore. Accord-
ingly, by Order dated February 27, 1981, the case having
been remanded to the Board, the Board ordered that the
case be remanded to the Regional Director for Region
26 for the purpose of properly arranging a hearing
before an administrative law judge.
The Board's remand Order further directed that upon
conclusion of the hearing an administrative law judge
prepare and serve on the parties a decision containing
findings of fact based upon evidence received pursuant
to the provisions of the remand Order, and conclusions
of law, and recommendations. Pursuant to the Board's
Order the Regional Director for Region 26 on March I,
1981, issued an appropriate notice of hearing. Pursuant to
the Board's remand and the notice of hearing the hearing
in this matter was held before me on March 31, 1981.
Upon the record made before me, including my obser-
vation of the demeanor of the witnesses, and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS OF FACT
I. THE FALSE STATEMENTS
In the initial hearing Perry testified that he was 23
years old. That testimony was consistent with his appli-
cation for employment with the Respondent which was
received in evidence as General Counsel's Exhibit 8 in
the initial hearing and which reflected a birth date of
March 14, 1956. At the hearing herein, however, Perry
admitted that his prior testimony in regard to his age was
false as was other information supplied on his application
for employment with Respondent. He admitted that his
true birth date was March 14, 1960.
In the prior hearing, consistent with his application for
employment with Respondent, Perry testified that he had
7 months of previous employment experience as a me-
chanic for Carruthers Concrete Company where he had
earned $6.25 per hour. At the hearing herein, Perry ad-
mitted that he had only worked for Carruthers 3 or 4
weeks and that his rate of pay was actually $5.50 per
hour at that company. Even Perry's admission was con-
tradicted by Sally Carruthers, secretary-treasurer of Car-
ruthers Ready-Mix Incorpoated, who credibly testified
herein from records of that company that Perry was not
employed by it at any time. She further testified, as the
keeper of books for Carruthers Tire and Auto Center, a
related company, that Perry had been employed by that
company for a period of about 3 weeks in October 1978.
His rate of pay according to Carruthers' testimony was
$4.50 per hour. 2
2 Other testimony was produced at the hearing relative to the falsity of
Perry's claims on his employment application with Respondent, G.C.
Exh. 8. Notwithstanding the falsity of these additional claims and even
though the application form itself which was signed by Perry provided
that it was agreed and understood by the applicant that any misrepresen-
tation or information given on the form would he considered as an act of
Continued
SERVICE GARAGE, INC, 933
Finally, the Respondent contends that Perry testified
falsely at the initial hearing regarding a statement of Re-
spondent Supervisor Scott relative to the withholding of
a planned wage increase to employees because of their
union activity. In the initial hearing, Perry testified that
employee Charles Ray Holt had asked Scott if the em-
ployees were going to get their cost-of-living raise and
Scott replied, "No, because of the Union activities, ya'll
will not get one." According to Respondent, Perry's affi-
davit, which was available to the Respondent at the ini-
tial hearing, differed from Perry's testimony in that in
the statement he did not attribute to Scott a specific use
of the term union activity and instead stated that the em-
ployees would not get a raise because of "all this,"
which Perry took as a reference to union activity.
II. THE ALLEGED MITIGATING CIRCUMSTANCES
It is quite clear from the foregoing, and I find and
conclude, that Perry did willfully, deliberately, and in-
tentionally lie about his age at the prior hearing. His jus-
tification for that lie was that if he had related his age in
the hearing it would have "gotten back" to his employer
at the time, Consolidated Freightways, and he would
have been fired. By implication it is clear that Perry had
misrepresented his age to Consolidated Freightways and
was thus lying to protect a lie. As a further effort to
show mitigating circumstances, Perry testified that he
did not lie to Respondent at the time of his employment
since he claimed he clearly related to Supervisor Scott
how old he was at the time he applied for work and
Scott had told him he would not be hired because of
that. Perry said he then went on to tell Scott that he put
a different age on the application and was then hired by
Scott after he completed a physical examination required
by Respondent.
In contradiction to Perry's testimony, Scott testified at
the remand hearing that he first learned of the falsifica-
tion on Perry's application with respect to his age on the
day of the remand hearing. Moreover, he denied advis-
ing Perry to put anything different on his application
when he was employed other than the information orally
given to Scott by Perry at the time. According to Scott,
who was corroborated by the testimony of Clifton
Hollis, principal owner of Respondent, the general
policy of Respondent was not to hire mechanics under
21 years of age because of Department of Transportation
regulations. Scott denied that he was aware of any con-
tradiction regarding Perry's age between Perry's applica-
tion and the information Perry supplied to the doctor
who conducted his physical examination on either the
same day or the day after Perry applied for employment.
In that physical examination which also appeared to be
an effort by Respondent to comply with Department of
Transportation regulations, Perry had related to the
doctor conducting the examination his true birth date
and that date was duly recorded on the physical exami-
dishonesty, such additional false statements did not appear to bear direct-
ly on, or specifically contradict, Perry's testimony at the original hearing.
While the falsity of Perry's other assertions in his application might bear
on Perry's credibility generally, I deem them irrelevant and immaterial to
the specific issues with respect to false statements given by Perry at the
initial hearing which were the subject of the remand herein.
nation report which was forwarded to Respondent subse-
quent to the examination. While Scott was equivocal
about whether he had ever seen or perused Perry's phys-
ical examination report, he related if he ever saw it he
did not observe or notice any difference in Perry's birth
date on that form as compared with Perry's employment
application. Scott added in his testimony that he would
not have hired Perry had he known that he was under
21 years of age at the time. There is no further evidence
that Respondent had in fact hired people less than 21
years of age.
Considering the testimony and the demeanor of both
Perry and Scott, I credit the latter. Perry appeared to be
too nonchalant in his testimony displaying little regard
for the hearing process. At times he leaned back in the
witness chair and clasped his hands behind his head in a
manner approaching arrogance. He showed no concern
over the impact of his admissions and freely confessed
his readiness to "lie to get a better job, a decent paying
job." This readiness would logically extend to a willing-
ness to "lie to keep a job." Scott, on the other hand,
while he displayed lack of total recall and punctuated his
testimony with several "I don't knows," nevertheless ap-
peared to be forthright, honest, and worthy of belief.
The General Counsel argued in his brief in support of
Perry's testimony that he should be credited concerning
his revelation to Scott at the time he applied that his age
was other than stated on the application because Perry
had related his true age3 to the doctor conducting the
physical examination. I find this argument unpersuasive
because it was quite clear that Perry lied in the initial
hearing in order to conceal another apparently unsolicit-
ed lie concerning his age made to a completely inde-
pendent employer. In view of this, and considering
Perry's own admission that he was quite willing to lie to
secure a job, coupled with the additional fact that Perry
made other unsolicited misrepresentations on his applica-
tion for employment with Respondent regarding his ex-
perience, Scott's testimony that he did not know that
Perry was under 21 years of age at the time of his em-
ployment by Respondent is very plausible and believea-
ble. Moreover, I find it not unreasonable that Respond-
ent, or Scott in particular, did not notice the difference
between the birth dates stated on Perry's physical exami-
nation form and his employment application. After all,
both forms were received in evidence in the initial hear-
ing and there is no evidence that anyone caught the dis-
crepancy between the two dates. Had Respondent been
aware of Perry's true age at that point it is more likely
that it would have made an issue of it at that point.
With respect to the difference between Perry's testi-
mony at the prior hearing and his prehearing statement
given the Board regarding comments attributed to Super-
visor Scott it is clear there is a contradiction regarding
Scott's specific reference to union activities in connec-
tion with the comment about a wage increase. This,
I Even Perry's birth date on the physical examination form, 3-14-59
(G.C. Exh 8), was not accurate, but it was not as gross an exaggeration
as the birth date reflected on his application. His second application re-
ferred to in the Board's decision claims still another birth date, 3-14-57
(G.C. Exh 10)
SERVICE GARAGE, INC.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, appears to be in my opinion less a question of
an outright falsification and more a question of the accu-
racy of Perry's perception and recollection. In any event,
Perry's prehearing statement was available to Respond-
ent in the initial hearing and I deem it inappropriate to
attempt to resolve this conflict now inasmuch as it does
not appear to be a material one as explained below.
Considering all the foregoing I am not persuaded, and
I affirmatively conclude, that there were no special cir-
cumstances shown on this record which would tend to
excuse or justify the false statements admittedly given by
Perry in the initial hearing.
1i1. THE EFFECTS OF THE FALSE STATEMENTS UPON
THE BOARD'S FINDINGS AND CONCLUSIONS
As the Board noted in its initial decision, the Adminis-
trative Law Judge failed to make any credibility resolu-
tions in his decision. The Administrative Law Judge did,
however, note testimony of Perry to the effect that he
had heard Supervisor Scott ask another employee who
had signed union cards. However, he found no unlawful
interrogation based upon the incident because he con-
cluded that Perry's testimony regarding the interrogation
could not be given "great weight." He went on to dis-
cuss Perry's testimony relative to the denial of the antici-
pated wage increase by Scott due to the employees
union activity. He also set forth the testimony of em-
ployee Charles Ray Holt concerning statements by Scott
regarding the same subject. Nevertheless, he dismissed
the allegation of the complaint regarding the threatened
loss of pay increase on the grounds that there was no
evidence that Respondent had an established policy or
practice of granting across-the-board pay increases, that
the General Counsel had "failed to establish that Re-
spondent harbored union animus," and that Respondent
"could have lawfully deferred a pay increase for the du-
ration of the union organizing campaign." The Board
disagreed with the Administrative Law Judge and after
reciting portions of Holt's testimony and Scott's on the
subject concluded that under either of their versions
Scott's conduct clearly conveyed the message to the em-
ployees that union activity prevented them from receiv-
ing an increase they otherwise would have been granted.
Thus, the Board found that Scott's statement was direct
evidence of animus. In so doing, it neither referred to,
nor relied upon, any testimony of Perry. Accordingly,
any discrepancy between Perry's testimony at the hear-
ing and his prehearing affidavit wherein he attributed
specific remarks to Scott concerning the wage increase
are simply not material. They could therefore have no
effect or impact upon the Board's conclusion with re-
spect to the alleged 8(a)(l) violation by Respondent.
Proceeding to the discriminatory discharge of Perry,
the Board carefully considered Respondent's defense of
Perry's unsatisfactory work. While the Administrative
Law Judge concluded that the discharge of Perry was
lawful in the absence of any evidence of union animus
the Board concluded that Supervisor Scott's "conceded-
ly mild response to Perry's errors at the time when they
were made, the failure to discipline and discharge other
employees for similar errors, and the timing of Perry's
discharge, which came shortly after the Union's demand
for recognition and coincided with the unlawful layoff of
Johnny Woods" (also considered by the Board in its De-
cision) were factors which persuaded the Board that Re-
spondent's discharge of Perry was "of a piece" with its
discriminatory layoff of Woods and was designed to
demonstrate that Respondent's power over employees'
working conditions in order to discourage them from
further support of the Union. In making this conclusion,
it does not appear that the Board relied upon Perry's tes-
timony over that of Scott. Rather, it appears that the
Board accepted Scott's testimony with respect to the
facts and relied principally in finding the violation upon
the undisputed factors set forth immediately above.
Under these circumstances, I find and conclude that any
false statements made by Perry at the initial hearing were
not relied upon by the Board and did not effect or have
impact upon the Board's final conclusion with respect to
the violative nature of Perry's discharge.
IV. THE EFFECT OF THE FALSE STATEMENTS ON THE
REMEDY
Having found that Perry's false statements with re-
spect to his age and experience in the initial hearing did
not affect the Board's ultimate conclusions with respect
to either the independent 8(a)(l) allegation or the 8(a)(3)
allegation based on Perry's discharge, there nevertheless
remains an issue with respect to the impact of Perry's
prevarications upon the remedy provided by the Board
in its decision. The Board in its Order required Respond-
ent to reinstate Perry to his former position without prej-
udice to his seniority and other rights and privileges and
make him whole for any loss of earnings he may have
suffered by reason of his unlawful termination.
The Board has required forfeiture of a remedy in prior
cases where it concluded that there was abuse of its pro-
cedures. Thus, in Iowa Beef Packers, Inc., 144 NLRB 615
(1963), enforcement denied in pertinent part 331 F.2d 176
(8th Cir. 1964), where it found no forfeiture, the Board
stated at 622:
Although the Board has withheld relief when an in-
dividual has abused its procedures by deliberate and
malicious conduct, such action has been taken
only where the circumstances require forfeiture of
remedy to effectuate the purposes of the Act. 2
" See, for example. O'Donnell's Sea Grill, 55 NLRB 828.
L2 See Clayton E, Smith. et al., d/b/a Clayton- Willard Sales, 126
NLRI3 1325.
The Board in O'Donnell's Sea Grill, cited in Iowa Pack-
ers, supra, denied reinstatement to an employee whose
discharge was found to be an unfair labor practice be-
cause of the employee's absenteeism and "his lack of
candor on the witness stand," since his reinstatement, the
Board concluded, would not effectuate the policies of
the Act. On the other hand, in Clayton- Willard Sales, also
cited in Iowa Beef Packers, the Board refused to adopt a
trial examiner's recommendation that reinstatement and
backpay be denied to an alleged discriminatee because of
the alleged discriminatee's attempted repudiation of the
charges filed by him which were a basis for the case and
SERVICE GARAGE, INC. 935
because of his testimony on the witness stand. The Board
concluded that the employee involved had not been de-
liberately evasive in his testimony as to occurrences in
the prehearing stage of the proceeding and, finding the
employee entitled to reinstatement and backpay, ex-
plained at 1326:
The remedy of reinstatement and backpay is not a
private right, but a public right granted to vindicate
the law against one who has broken it. Its object is
to discourage discharges of employees contrary to
the statute and thereby vindicate the policies of the
National Labor Relations Act. The statute author-
izes reparation orders, not in the interest of employ-
ees, but in the interest of the public. They are not
private rewards operating by way of penalty or
damages.
In keeping with the explanation cited above in Clay-
ton-Willard Sales, the Board has been reluctant to find a
forfeiture of reinstatement rights in cases where a re-
spondent was found to have violated the Act in the dis-
charge of an employee although the Administrative Law,
Judge hearing the case had found that the employee was
not wholly credible in all respects. See, e.g., J.P. Stevens
& Co., 245 NLRB 198 (1979), enfd. 639 F.2d 487 (4th
Cir. 1980); Coca-Cola Bottling Company of Memphis, 232
NLRB 794, 804 (1977); Trustees of Boston University, 224
NLRB 1385, 1401-2, 1410 (1976). Moreover, the Board
has not specifically stated that "perjury" per se consti-
tutes deliberate and malicious conduct which would re-
quire forfeiture of a backpay and reinstatement remedy.
It has held, however, in D. V Copying and Printing, Inc.,
240 NLRB 1276 (1979), that subornation of perjury alone
constitutes "deliberate and malicious conduct so calculat-
ed to abuse and undermine the Board's processes" as to
warrant the withholding of the reinstatement remedy and
limiting backpay from the day of the discharge to the
date of subornation of perjury. In the D. V Copying case
the Board did not comment upon the dicta in the admin-
istrative law judge's decision to the effect that the Board
had often ordered the reinstatement of discriminatees de-
spite findings that they perjured themselves at hearings.
Research has disclosed no case, however, where the
Board has specifically ordered reinstatement and back-
pay for an employee following a specific admission of
that employee to having lied under oath in a Board pro-
ceeding.
The courts have been less reluctant in finding a forfeit-
ure of reinstatement rights, and have refused to enforce
orders of reinstatement for employees who have engaged
in fraudelent or unlawful conduct either subsequent to
their unlawful discharges, or prior thereto and only sub-
sequently disclosed. See, e.g., N.L.R.B. v. Mutual Main-
tenance Service Co., Inc., 632 F.2d 33 (7th Cir. 1980);
N.L.R.B. v. Harry Magnusen, d/b/a North Star Refrigera-
tor Co., 523 F.2d 643, 646 (9th Cir. 1975); N.L.R.B. v.
Commonwealth Foods, Inc., 506 F.2d 1065, 1068 (4th Cir.
1974); N.L.R.B. v. Harold W. Breitling, and Robert L.
Breitling, partners d/b/a Breitling Brothers Construction
Co., and for Breitling Brothers Construction, Inc., 378 F.2d
663 (10th Cir. 1967); N.L.R.B. v. Big Three Welding
Equipment Company, 359 F.2d 77 (5th Cir. 1966);
IV.L.R.B. v. Coca-Cola Bottling Co., 333 F.2d 181, 185
(7th Cir. 1964). More specifically, in refusing to enforce
the Board's Order with respect to the discriminatee,
Grove, in Iowa Beef Packers, the Eighth Circuit found, in
agreement with the trial examiner, that Grove had given
false testimony at the hearing, and that forfeiture of
Grove's reinstatement rights was required to serve the
policies of the Act.
The Board, too, has been less reluctant to deny rein-
statement to unlawfully discharged employees where
such employees were found to have engaged in rather
serious acts of misconduct such as theft (Offner Electron-
ics, Inc., 134 NLRB 1064 (1961); Uniform Rental Services,
Inc., 161 NLRB 187 (1968)), misconduct in utilizing the
airways (Fort Smith Broadcasting Co., 146 NLRB 759
(1964)), and embezzlement (Ludwig Fish and Produce Co.,
221 NLRB 1306 (1975)).
Keeping in mind that any remedy provided has as its
purpose the vindication of public rights, it is difficult to
perceive that the denial of reinstatement in the instant
case detracts in any degree from the effectuation of the
policies of the Act. On the contrary, such denial would
appear appropriate in maintaining the integrity of the
hearing process which is fundamental to the enforcement
of the Act. True, Perry's admitted lies at the initial hear-
ing may well not have come under the statutory defini-
tion of perjury since, as I have found, the lies were im-
material to the facts relied upon by the Board in finding
a violation in Perry's discharge. 4 However, Perry's false
statements were clearly material to a remedy in the case.
Absent the false testimony regarding his age the applica-
tion of the Respondent's policy against hiring employees
under 21 could have been litigated at the prior hearing
since it did affect the remedy. In any event, one who is
inclined to lie in testimony under oath cannot be expect-
ed to perceive and faithfully observe the distinction be-
tween that which is relevant and material and that which
is not. Absent possible sanctions against perjury the only
avenue available to the Board in maintaining the integri-
ty of the hearing processes in cases of admitted false tes-
timony is the denial of reinstatement rights. Surely effec-
tuation of the policies of the Act does not require condo-
nation of the giving of admittedly false testimony.
The instant case is not simply one where the accuracy
or reliability of a witness's testimony is open to question.
It is not a case of a witness having a faulty perception or
a poor memory and it is not a case of simple exaggera-
tion by a witness. Finally, it is not a case where the trier
of fact simply does not believe a witness. In those situa-
tions a better case may be made for refusing to deny re-
instatement. The instant case is one, however, of admit-
tedly deliberate and willful prevarication by a witness,
Perry. In my opinion, Perry's prevarications, related as
4 As the General Counsel's brief points out statutes relative to perjury
and false statements base iolations thereof on the materiality of the alsi-
fication See 18 UIS.CA §§1001, 1621, Crimes and Criminal Procedure
(1964 See also nirted Stute v Sam John Deep, 497 tF 2d 13 16 (9th Cir
1974t, LaURvc s nlted States. 337 F 2d 39 (Sth Cir 1964) Here Perry's
falsifications were not material to the ultimate merits of the case and thus
may not fall 'ilhin the statutory definition of "perjury." or prohibited
false statemcn it
SERVICE GARAGE. INC.
_ .
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they were to a remedy, constituted sufficiently deliberate
and egregious conduct so as to warrant a forfeiture of re-
instatement rights to which he would otherwise be enti-
tled. Cf. Iowa Beef Packers, supra. A denial of reinstate-
ment here is clearly consistent with the vindication of
public rights and the effectuation of the policies of the
Act.
Considering the foregoing, I will recommend to the
Board that it modify its previous order in this case to
eliminate the requirement for Perry's reinstatement.
Moreover, I recommend that the Board limit backpay
due to Perry to that time from his discharge to the date
of the misconduct which warrants denial of his reinstate-
ment, i.e., the date of his false testimony at the initial
hearing.
[Recommended Order omitted from publication.]