Stemun Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1969

174 N.L.R.B. 288 (N.L.R.B. 1969)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stemun Manufacturing Company, Inc. and District
No. 82 of the International Association of
Machinists, AFL-CIO. Case 9-CA-3189
January 31, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On July 2, 1965, the National Labor Relations
Board issued a Decision and Order' in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and ordering that it
cease and desist therefrom and take certain
affirmative action to effectuate the policies of the
National Labor Relations Act, as amended.
Subsequently, the Board filed a petition with the
United States Court of Appeals for the Sixth
Circuit for enforcement of its Order.
Thereafter, on November 24, 1967, the Court
handed down its Decision2 in which it neither denied
nor enforced the Board's Order, but remanded the
case to the Board for the purpose of taking
additional evidence on the genuineness of a disputed
memorandum. On January 18, 1968, the Board
issued an order reopening the record and remanding
the case for hearing before a Trial Examiner. The
Board's Order directed a Trial Examiner to receive
evidence on the subject of the disputed
memorandum and to make findings of fact with
respect thereto; to determine what credit, if any,
should be given the memorandum; and further
ordered that upon conclusion of such hearing, the
Trial Examiner should prepare a Supplemental
Decision.
On October 28, 1968, Trial Examiner Joseph I.
Nachman issued his Supplemental Decision,
attached hereto, in which he found that the disputed
memorandum was not in existence on or about the
date it bears, and recommended that the Board
adhere to and reaffirm its Decision and Order which
issued on July 2, 1965. Thereafter, the Respondent
filed exceptions to the Supplemental Decision
together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the remanded hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the
exceptions and brief, and the entire record in the
'153 NLRB 1278
'386 F 2d 174 (C A. 6, 1967).
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board reaffirms its Order of July 2, 1965,
and hereby orders that the Respondent, Stemun
Manufacturing Company, Inc., Springfield, Ohio, its
officers, agents, successors, and assigns, shall take
the action set forth therein.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding
tried at Springfield, Ohio, on July 30, 1968, pursuant to a
decree of the United States Court of Appeals for the
Sixth Circuit, entered November 24, 1967, remanding this
proceeding to the National Labor Relations Board (herein
the Board) for the purposes in said decree stated, and the
Board's order dated January 18, 1968, reopening the
record in this proceeding, pursuant to said remand.
At the trial before me the parties were represented by
counsel and were afforded full opportunity to examine and
cross-examine witnesses, to adduce relevant testimony,'
and to submit briefs The General Counsel and
Respondent submitted briefs, which have been duly
considered.'
Upon the entire record in the case' including my
observation of the demeanor of the witnesses while
testifying, I make the following
'At the reopened hearing , the General Counsel called as a witness
Robert A. Vaughn , Esq , a member of the Springfield , Ohio , Bar, who
represented Respondent at an earlier stage of this proceeding Mr Vaughn,
although directed to answer certain questions put to him , declined to do so
on the ground that all information concerning this matter came to him
solely by reason of the attorney-client relationship and was, for that
reason, privileged . After all other testimony had been taken , the hearing
was adjourned indefinitely to give the General Counsel an opportunity to
decide whether or not he would seek enforcement of his subpena against
Vaughn, but Counsel was admonished to advise me promptly of the course
he would pursue so that in the event he elected not to institute subpena
enforcement proceedings , the record could be closed by order Having no
word from counsel for over 6 weeks , on September 12, 1968, 1 issued an
order directing the General Counsel to show cause why the record should
not be closed in order that I might proceed to a decision on the basis of
the record as made On September 23, 1968 , the General Counsel filed a
response setting forth that he regarded the record made as sufficiently
complete and moved that the same be closed . Accordingly, I entered an
order on September 24, 1968 , closing the record and fixing the time for
briefs
'With respect to the issue involved, Respondent's brief submitted by
Rector consisted of just one sentence reading as follows
Since the General Counsel presented no evidence at this hearing
respondent must conclude that the document in question is authentic and
that said document establishes the fact that prior to any union activity at
respondent ' s plant , the discharge of Superintendent Skaggs and his
relatives was decided upon and that said discharges promulgated [sic] the
union activity.
'My order of September 12, 1968, also directed the parties to show
cause why the transcript of evidence taken on July 30, 1968 , should not be
corrected in the particulars set forth in an appendix attached to and made
a part of said order The General Counsel responded that he had no
objections to the corrections referred to No response was received from
the other parties Deeming said corrections necessary to correctly reflect
174 NLRB No. 50
STEMUN MFG. CO. 289
FINDINGS OF FACT
On May 7, 1964, International Association of
Machinists (herein called the Union), filed a charge with
the Board alleging that Stemun Manufacturing Company,
Inc. (herein Respondent), discharged five employees
because of their assistance to and support of the Union.
On May 20, 1964, the charge was amended to include two
additional alleged discriminatees The Board's
investigation of the charge was conducted by William C.
Mittendorf of the Cincinnati Regional Office. At this
stage of the proceeding, Respondent was represented by
Attorney Robert A. Vaughn. In the course of the Board's
investigation, in which Vaughn fully cooperated,
Mittendorf interviewed and took affidavits from
Respondent President Muncy and Superintendent Kindell.
These interviews took place in Vaughn's office where
Mittendorf, in the presence of Muncy and Kindell,
dictated the information they furnished either to a
secretary or to a machine. Several days later, after the
material had been transcribed in Vaughn's office, and
some corrections which at least Muncy insisted upon were
made, the affidavits were signed on June 17, 1964, before
Vaughn as notary public, and the latter mailed the signed
affidavits to Mittendorf at his office in Cincinnati. It is
significant that nowhere in the affidavit which Kindell
gave the Board does he mention having made any
recommendation to Company President Muncy Also
during the investigation, Mittendorf asked Vaughn to
submit a written statement of Respondent's position with
respect to the charges against the latter. In a nine-page
letter dated June 10, 1964, Vaughn stated Respondent's
reasons for discharging each of the alleged discriminatees
named in the charge, as amended.
On June 30, 1964, the Regional Director issued a
complaint against Respondent which, in respects not here
material, was amended August 17, 1964. Vaughn, as
counsel for Respondent, filed an answer to both
complaints; his answers, to the extent here material,
averring that the several discharges were for cause.
Hearing on the amended complaint was scheduled for
September 22, 1964. On that date, with a Trial Examiner
present, but before the hearing opened, the parties entered
into an informal settlement agreement which the Regional
Director approved. However, by order dated November 5,
1964, the Regional Director withdrew his approval of the
informal settlement agreement,4 and issued a second
amended complaints which was heard before Trial
Examiner Whittemore on February 10 and 11, 1965,
resulting in the Board's Order reported at 153 NLRB
1278 The answer to the last mentioned amended
complaint, filed with the Regional Office on December 8,
1964, was signed on behalf of Respondent by Harvey B.
Rector, a labor relations consultant; Vaughn at some
undisclosed time having severed his connection with the
case.
At the hearing in February 1965, the principal issue
litigated was whether the four employees then involved
the evidence taken, and the proceedings before me, I now order the said
transcript corrected in all respect set forth in the appendix to the aforesaid
Order To Show Cause.
'The settlement agreement is not a part of the record The order of
November 5, 1964, recites that under the settlement agreement Respondent
was obligated to make whole one of the alleged discrimmatees by paying
him the sum of $1,000 and post a notice covering the allegations of the
complaint, and that Respondent failed to pay the money or post the notice
'The principal effect of said amendment was to reduce the number of
alleged discriminatees from seven to four.
were discharged because of their union activity
Respondent contended that early in 1964, it hired Kindell
as plant superintendent, with instructions to take such
action as he might deem necessary to eliminate certain
problems then allegedly current in the plant, that after
such investigation Kindell prepared and submitted to
Company President Muncy a memorandum, dated April
15, 1964, which is before the Union began its activity at
Respondent's plant The memorandum referred to, which
was introduced into evidence at the initial hearing as
Respondent's Exhibit 2, and which Kindell testified he
prepared and signed on the date it bears, sets forth his
alleged recommendations to Muncy that the seven
individuals mentioned in the original complaint be
discharged, and the reasons for such recommendations.
Muncy corroborated Kindell that said recommendations
were submitted to and approved by him "on or about"
April 15, 1964.
Trial Examiner Whittemore discredited both Kindell
and Muncy. For reasons set forth in his Decision (153
NLRB at 1282, fn. 5), he expressed doubt that Kindell
prior to the hearing had seen said memorandum much less
dictated it, and found that said document "was prepared
just before the hearing, either by [Labor Relations
Consultant] Rector or with his knowledge and consent, for
the sole purpose of deceiving the Board in an attempt to
make it appear that it was in existence before union
activity in April began" (id. at p. 1282, emphasis as in
text). Because he found the document in question not to
be genuine, Trial Examiner Whittemore discredited both
Muncy and Kindell, and concluded that the four
employees then involved were discharged for their union
activity, recommending to the Board that it order their
reinstatement with backpay. On exceptions, the Board,
"without holding that the document found by the Trial
Examiner to be false was prepared by Rector or with his
knowledge and consent," (id. at 1279, fn. 2), nonetheless
found and concluded on the record as a whole that
Respondent discharged the four employees involved
because of their union activity, and adopted Trial
Examiner Whittemore's ultimate findings, conclusions,
and recommendations.
The Court of Appeals, deferring decision on the
Board's petition for enforcement of its order, remanded
the case to the Board for further hearing, holding (386
F.2d 174, 175):
The question of the genuineness of the disputed
memorandum should be resolved. If the document is
found to be genuine, the Company should be cleared of
the charge of fraud made against it by the examiner. If
the memorandum is found to be false, the record should
so show.
The case is remanded for the taking of additional
evidence on the subject of the disputed memorandum
and for findings of fact with respect thereto; also to
determine what credit, if any, should be given to the
memorandum as well as to the testimony of the
company president and superintendent.b
At the hearing before me the only witness called by the
General Counsel who testified on substantive matters was
William C. Mittendorf, who had investigated this matter
initially and tried the case before Trial Examiner
Whittemore on behalf of the General Counsel Mittendorf
testified with respect to the investigation he had made
prior to the issuance of the initial complaint, the manner
'The Board's order reopening the record and directing a further hearing
follows the mandate of the court of appeals
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which he took the affidavits from Company President
Muncy and Superintendent Kindell , and regarding his
request to Attorney Vaughn for a statement of
Respondent ' s position on the charge filed by the Union
and Vaughn ' s reply thereto , all as above set forth. With
respect to the document concerning which the Court of
Appeals remanded the case to the Board , Mittendorf
testified that the first time he saw that document or had
any information concerning its existence was on February
11, 1965, when it was offered in evidence at the initial
hearing.
In its opinion the Court of Appeals referred to
testimony by Company President Muncy that he had
received the questioned memorandum on or about April
15, 1964, prior to the advent of the Union , and that "Mr.
Mittendorf has it in his files. " The court construed this
statement to mean , as Respondent argued in its brief to
that court (p. 6),' that Mittendorf had been given the
questioned document in the course of his investigation of
the case, and had it in his files prior to the hearing. The
full text of the questions and answers to which the Court
made references , is as follows
Q. [by Mr. Rector] Now, then, after Joe [Kindell]
had been there a while , then, did he give you a
recommendation?
A. Yes, he did.
Q I hand you Respondent ' s Exhibit 2 and ask you if
that is the recommendation that he gave you?
A Yes, this is the recommendation that Mr. Kindell
gave me and also in accordance with my affidavit as I
presented it and Mr. Mittendorf has it in his files, as
well as we have our copy... .
Being uncertain as to whether Muncy's last answer
referred to the affidavit he gave Mittendorf or to
Respondent ' s Exhibit ' 2, the above questions and answers
were read to Muncy when he testified before me, and he
was asked which document he was referring to when he
answered as last above quoted. Muncy replied that his
answer referred only to the affidavit he had given
Mittendorf in the course of the latter ' s investigation
Indeed , when asked the point blank question if he had
ever given Respondent's Exhibit 2 to any Board agent,
Muncy replied , " I couldn't say that I definitely did," and
admitted that he had no reason to believe that anyone else
connected with his organization had done so . Muncy also
admitted that in his conversations with Mittendorf which
resulted in his affidavit furnished the Board in the course
of the initial investigation , he did not "specifically
'the pertinent portion of Respondent's brief reads:
. Mr Muncy testified that some considerable time prior to the
hearing when Mr. Mittendorf was investigating the complaint that he
gave Plaintiffs [sic] Exhibit No. 2 to Mr Mittendorf and that Exhibit
No 2 was in the files of Mr Mittendorf long before the trial. This Mr.
Mittendorf is the same man who was attorney for the Board in this case
and actually tried this case Attorney Mittendorf, with full knowledge
that he had in his files both the affidavit of Randall Muncy referring to
Plaintiffs [sic] Exhibit No 2 and Exhibit No 2 and even after he,
Attorney Mittendorf, had read the Examiner's Opinion, and before the
hearing before the Board, Attorney Mittendorf did not deny and failed
to reveal to the Board that he had in his files both the affidavit of
Randall Muncy and Plaintiffs [sic] Exhibit No 2, which he had received
from Randall Muncy weeks before the trial All of this despite the fact
that he knew that the Trial Examiner in his opinion stated that he, the
Trial Examiner, "believes that this document was prepared just before
the hearing "
The failure of Attorney Mittendorf to acknowledge to the Board that
he had this exhibit in his file, with full knowledge what the Examiner
said in his opinion, constitutes a bigger misrepresentation than the Trial
Examiner accuses Rector of.
mention" Exhibit 2, and did not remember whether during
the aforesaid conversations with Mittendorf he indicated
in any way that such document in fact existed.
Muncy testified that Respondent's Exhibit 2, was given
him by Superintendent Kindell "on or about" April 15,
1964. He specifically stated that his testimony in that
regard was based on his recollection, and not on the fact
that the document bears the date mentioned. It is
significant, however, that when asked about other dates
connected with these events he pleaded inability to recall
because of the lapse of about 4 years Muncy further
testified that the original of Kindell's memorandum, which
physically became Respondent's Exhibit 2, was given to
him. He testified that he produced it for "somebody," but
never stated or even indicated who that "somebody"
might be. Muncy was unable to state that he had given
the document to Vaughn, and suggested that "Kindell
may have done so." Although Muncy insisted that the
document now in question was taken from a file obtained
from Attorney Vaughn's office, he gave no testimony to
explain how said document reached Attorney Vaughn
other than his speculation above mentioned that Kindell
may have given it to Vaughn.' Muncy further testified that
sometime in the fall of 1964, he and Rector, who at that
point represented Respondent, were together in Muncy's
office when a file relating to this matter was brought in
from Vaughn's office by some person whose identity he
could not recall; that Rector, in his presence, went
through that file, found the document in question, and
promptly commented on its importance.
Rector testified that he was retained in this matter in
September or October 1964, and that his function was "to
help them settle it or . . . make a recommendation as to
what should be done about it." Rector's version of the
manner in which the questioned document came to light
differs somewhat from that given by Muncy. According to
Rector, he went to the plant shortly after he was retained,
and met with Muncy and Kindell; at his request for all
files bearing on the case, Muncy produced several files,
and Kindell left the room and shortly thereafter returned
with his own file and a file which had been obtained from
Attorney Vaughn; and he went through all these files and
in one of them - he thought- it was the file which came
from Attorney Vaughn, but was not sure - found the
document in question. Rector admitted that he did not
disclose to the Board the existence of the questioned
memorandum prior to offering the same into evidence at
the initial hearing.
Ultimate Findings and Conclusions
The sole issue in this case is whether the Kindell
memorandum was prepared on April 15, 1964, the date it
bears, as Respondent contends, or whether, as the General
Counsel contends and Trial Examiner Whittemore found,
said document was prepared subsequent to the events here
involved and dated back to make it appear that the
decision to terminate the employees involved was made
before Respondent became aware of the Union's
organizational activity After careful consideration of the
entire record in this case, I am convinced and accordingly
find and conclude, as did Trial Examiner Whittemore,
that the document in question was not in existence on or
about the date it bears, nor in June 1964, when Kindell
'It should be noted that Kindell, when testifying at the initial hearing,
denied that he gave the questioned document to Attorney Vaughn. Kindell
did not testify before me
STEMUN MFG. CO.
and Muncy were interviewed by Mittendorf, but was
prepared at some time thereafter and dated back, for the
purpose of deceiving the Board and making it believe that
it was in existence before the union activity began at
Respondent's plant.' My conclusion in this regard is
predicated upon the totality of the following
considerations.
1. The facts as distinguished from the conclusions
stated in footnote 5 of Trial Examiner Whittemore's
Decision which I find supported by the record.'°
2. Mittendorf's uncontradicted testimony, which I
credit, that he never saw the questioned document until it
was offered in evidence at the hearing before Trial
Examiner Whittemore, and that in his interviews with
Muncy and Kindell in June 1964, nothing was said which
indicated that such a document existed.
3. The failure of Respondent to call Mrs. Nelson as a
witness at the reopened hearing, or to explain its failure to
do so. Assuming arguendo that Respondent had no
reason, at the initial hearing, to believe that corroboration
of Kindell was necessary or desirable, at the time of the
reopened hearing the genuineness of Kindell's alleged
memorandum had become the issue , and I can think of no
witness whose testimony would be more pertinent than
that of the person to whom the document was allegedly
dictated, and who allegedly typed it Respondent's failure
to call her, or explain its failure to do so, raises the
permissible inference, which I draw, that had Mrs Nelson
been called as a witness, she would not have corroborated
Kindell, or otherwise supported Respondent's position.
Halliday v. United States, 315 U.S. 94, 99; Interstate
Circuit Inc. v. United States, 306 U.S. 208, 225-226. To
the same effect see N.L.R.B. v. Reed & Prince
Manufacturing, Co., 130 F.2d 765, 768 (C.A. 1).
4. The failure of Superintendent Kindell and President
Muncy to mention the existence of the questioned
document to Board Agent Mittendorf, in the interviews
which resulted in the affidavits executed on June 17, 1964,
and which were subsequently furnished to the Board.
While the reasons stated in the affidavits for the discharge
of the employees involved are substantially the same as
those in the questioned document, I find it difficult to
believe that if said document in fact existed at that time
that neither Kindell nor Muncy, who were then trying to
convince Mittendorf that the employees involved had been
dischaiged for cause, would have failed to mention that
piece of evidence which virtually established Respondent's
defense.
'Because I deem it unnecessary to a disposition of the issue , I make no
finding as to the identity of the person or persons responsible for the
preparatiion of said document
"Trial Examiner Whittemore stated that when the questioned document
was offered in evidence "the two pages were unwrinkled and unsoiled,
presenting the clear appearance of having come fresh from some
typewriter." Almost 4 years have elapsed since the document was offered
in evidence , and in the interim it has apparently been handled by many
people . It now bears a number of fingerprints and smudges Accordingly,
at this time I have no way of judging what the appearance of the document
was in February 1965, and I make no finding in that regard Also, Trial
Examiner Whittemore stated that when Kindell was asked to whom he
dictated the questioned document he answered , "after much deliberation,"
Mrs Nelson. The transcript does not indicate any pause, hesitation, or
deliberation by Kindell, but, of course, Trial Examiner Whittemore saw
and heard the witness , while I did not, and his observations as to demeanor
are entitled to great weight . Moreover , it may be noted that neither in its
extensive exceptions filed with the Board, nor in its brief before the Court
of Appeals , did Respondent question the accuracy of Trial Examiner
Whittemore's finding that Kindell ' s aforementioned answer was "after
291
5. Neither Muncy nor Rector, both of whom testified
before me with respect to the manner in which the
questioned document came to light, impressed me as
credible witnesses. Muncy was not only evasive, having to
be asked a number of questions several times over before
he answered the question put to him, but his attitude while
testifying was belligerent. At one point in his
cross-examination Muncy without any provocation
whatever exclaimed, "How long am I going to be
subjected [to] harassment by the National Labor
Relations Board," so that it became necessary to
admonish him that his only function was to answer the
questions put to him. It is a little strange also that Vluncy
could testify from recollection, as he claimed, that the
questioned document was given him by Kindell on or
about April 15, 1964, but was unable to recall when other
events took place, or that some of them had taken place
at all, pleading that after the lapse of 4 years he could not
remember. Rector's testimony before me, in one respect, I
find inconsistent with statements he made in the prior
hearing. At the hearing before me Rector testified that he
had never read and "I didn't and I still don't, to this day"
have a copy of the affidavit Kindell gave the Board in
June 1964, and expressed doubt that the Board agent
furnished a copy of it. The transcript of the prior hearing
shows, however, that Rector produced Kindell's affidavit
at the hearing, had it marked for identification as
Respondent's Exhibit 1, and asked Board counsel to
stipulate it into evidence as Kindell's testimony with
respect to the facts therein stated. Although said exhibit
was then rejected, it was subsequently received in
evidence, and at that time the following colloquy appears.
TRIAL EXAMINER: . . . Did you take this affidavit'
MR. MITTENDORF: Yes, sir.
TRIAL EXAMINER: Did you supply him [Rector] with
a copy of it?
MR. MITTENDORF: Well, I am sure that he had one.
Mr. Rector had one here
TRIAL EXAMINER: Have you been supplied with a
copy of it?
MR. RECTOR: Yes.
6. And finally, but by no means least in importance, is
the fact that Attorney Vaughn who then represented
Respondent, and who, according to Muncy and Rector,
had the questioned document in his files, wrote the Board
on June 10, 1964, giving Respondent's reasons for
discharging the employees involved, and did not mention
Kindell's alleged memorandum of April 15, 1964. That
document, which gave the reason for the discharge of each
of the employees involved, if it was in fact prepared before
the union activity at Respondent's plant began, would
appear to be a complete defense to the allegations of the
complaint that said employees were discharged because of
their assistance to and support of the Union. I find it
difficult to believe that Attorney Vaughn would not have
recognized the significance of that memorandum and that
he would have failed to refer to it in his June 10, 1964,
letter to the Regional Office by which he tried to convince
the latter that a complaint herein was not justified."
Accordingly, it is recommended that the Board adhere
to and reaffirm its Decision and Order herein which issued
on July 2, 1965 (153 NLRB 1278).
much deliberation." Accordingly, I adopt his finding in that regard.
"While no one of the considerations above mentioned, standing alone,
might lead me to the conclusion I have reached, their totality makes that
conclusion inescapable.