Petition for Writ of Certiorari — Stark v. National Labor Relations Board

Supreme Court brief1976

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In THE

Supreme Cont of the Suited States

OCTOBER TERM, 1975

Frep Stark anv Jamaica 201 Sr. Corp., Ino.

and Jamaica 202 Sr. Corp., Inc.,

Petitioners,

Vv.

Nationa Lasor Reiatrons Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Cuaries R. Karz

360 Lexington Avenue

New York, New York 10017

(212) 867-9140

RARE NNTP SRR LTR ELL IE ANN IE FEA IIAT DY

TABLE OF CONTENTS

PAGE

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OEE HIE wkuaun< ve twhaehene ounce caucieat is 2

SOUS OE WN ID was ccntccosakncisaweeuseuce 3

Reasons For Granting The Writ .................. 4

SPIE us SoU hata Neuataonuere nis ere 11

APPENDIX:

Decision And Order Of The NLRB ............ la

Decision Of The Administrative Law Judge .... da

Opinion Of The Court Of Appeals ............. 37a

Judgment Of The Court Of Appeals .......... D6a

AvurxHorities Crrep

Bowman Transp. Inc. vy. Arkansas-Best Freight, ——

U.S. —, 95 S.Ct. 438 (1974) ................ y

Donald Trettenero, 129 NURB 619 (1960) 22.0.0... )

Goldberg & Kelley, 397 U.S. 254 (1970) ........... i)

Jacques Power Saw Co., 85 NURB 440 (1949) ...... 5

NLRB vy. Burke Machine Tool Co., 133 F.2d 618 (6

WME, A 54.44 045 ol wendex ec kee. )

ii TABLE OF CONTENTS

PAGE

NLRB v. Interboro Contractors, Inc., 432 F.2d 854

ES ns Serger a ear 8

NLRB vy. Prettyman, 117 F.2d 786 (6 Cir. 1941) ....10, 11

NLRB vy. Quality & Service Laundry, Inc., 131 F.2d

PS eke oe ciN sa hvac conta seseues

NLRB vy. Rex Disposables, 491 F.2d 588 (5 Cir. 1974) 6

NLEB v. Thompson, James & Co., 208 F.2d 743 (2

IED ate CLES Ee SON XG Eb oh awardees ski eens 7

NLRB v. Vapor Blast Mfg. Co., 287 F.2d 402 (7 Cir.

ae et pone lel « cn ainc

fad) |

Statutes:

National Labor Relations Act, 29 U.S.C. § 151:

§ 8(a)(3), 29 U.S.C. §$ 158(a)(3) .............. 5

Foe Bk 2 S|) an 2, 5, 8

Miscellaneous:

27 No. 1, Administrative Law Review Section of Ad-

ministrative Law, ABA, Winter 1975, p. 96 .... 6

4 Jones on Evidence, 6th Ed., 543 ................. 7,8

6 Wigmore, Evidence § 1837-1838 ..............05. 9d, 7,9

Federal Rules of Evidence Rule 615—Exclusion of

elt eae comet «oy itn een np bee a

PRETTY PEA ITEM LOR IMG AF RAE EY

In THE

Supreme Court of the United Staies

OCTOBER TERM, 1975

Frep Stark anp Jamaica 201 Sr. Corp., Inc.

and Jamaica 202 Sr. Corp., Inc.,

Petitioners,

Natrona Lasor Re.atrons Boarp,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

Petitioners, Fred Stark and Jamaica 201 St. Corp., Inc.

and Jamaica 202 St. Corp., Inc. (herein “Petitioner” or

“Stark”) respectfully pray that a writ of certiorari issue

to review the judgment of the United States Court of Ap-

peals for the Second Circuit entered in this case on De-

cember 2, 1975.

Opinions Below

The opinion of the Court of Appeals (37a) is not yet

officially reported. The decision and order of the National

Labor Relations Board (la) is reported at 213 NLRB 38

(1974).

58 LTO RY RE LEAT RD TOON LRP TIF

Jurisdiction

The opinion of the Court of Appeals for the Second Cir-

euit (87a), enforcing the decision of the National Labor

Relations Board (herein ‘‘Board’’) issued November 5,

1975. The Court thereafter entered judgment (56a) on

December 2, 1975. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

Question Presented

Was the Board’s decision and order not justified and

therefore unenforcible since it was obtained without due

process of law because Stark was denied a fair trial by

reason of the Administrative Law Judge’s (‘‘ALJ’’) out

of hand refusal to sequester the alleged discriminatees,

based not on the exercise of his discretion, but on the

ground that it is the ‘‘Board’s ‘uniform practice’ (48a) not

to apply the rule to those persons”?

Statute Involved

The relevant provision of the National Labor Relations

Act, as amended (the ‘* Act’’), 29 U.S.C. §§ 151, 160(b), is

set forth below:

‘‘See. 10(b) Any such [unfair labor practice] pro-

ceeding shall, so far as practicable, be conducted in

accordance with the rules of evidence applicable in the

district courts of the United States under the rules of

civil procedure for the district courts of the United

States, adopted by the Supreme Court of the United

States...”

Statement of the Case

This case presents a question critical to the administra-

tion of the Act. Based on an unfair labor practice com-

plaint issued against Stark alleging the discriminatory

discharge of six (6) employees, the case was tried before

an ALJ. At the outset of the hearing Stark moved to

sequester all witnesses including the six (6) alleged dis-

criminatees ‘‘because in this case there will be a very sharp

issue of credibility involved” (42a). The ALJ, out of

hand, without exercising any discretion on his part, denied

sequestration since in his view ‘‘[t]he Board’s uniform

practice has been not to apply the rule to those persons’’

(48a).

The ALJ in his decision stated that ‘‘the case revolves

substantially around credibility resolutions’? (41a) and

thereupon promptly decided all issues of credibility against

Stark. The Board in upholding the ALJ’s credibility find-

ings followed its ‘‘established policy not to overrule an

Administrative Law Judge’s resolutions with respect to

credibility unless the clear preponderance of all the rele-

vant evidence convinces us that the resolutions are incor-

rect’? (42a).

The Court below stated it will not upset the ALJ’s credi-

bility findings if ‘‘correct procedures have been followed

in making the credibility findings’? (42a).

The Court of Appeals stated that if this had “been a

court trial involving ordinary witnesses, it would have

constituted a classic case for sequestration” (48a) and that

the ‘‘failure to have exercised that discretion in favor of

sequestration would have been an abuse of diseretion’’

(D2a).

The Court of Appeals emphasized that the effect of

failure to sequester the discriminatee witnesses was

heightened by the ALJ's “novel view” of his geometrical

proportion formula for determining credibility when he

said:

‘Tf there was fabrication, it would seem more probable

that it was the one (i.e. Stark), rather than the four

(i.e. disecriminatees), who was lying. It is, of course,

possible that the testimony of four can be contrived,

and that of one truthful; however, the likelihood of

perjury or mistake becomes more remote in direct, or

even geometrical, proportion to the number of persons

who testify to a fact.” (45a n. 2a)

The Court of Appeals stated that although the ALJ had

abused his discretion in refusing to apply “the rule,” Stark

was not entitled ‘‘to a remand—much less to the denial of

enforcement . . .” (53a).

The ALJ made credibility findings after having denied

Stark the opportunity for a full and fair disclosure of all

the facts. Accordingly, his decision and the Board’s order

were obtained without due process of law.

Reasons for Granting the Writ

1. The Board’s order should not have been enforced

be -<sse it was obtained without due process of law.

Stark was denied the opportunity for a full and fair

disclosure of the facts.

The case before the Board depended on the resolution

of very sharp critical issues of credibility. In order to

present a full and fair disclosure of the facts Stark moved

to sequester all witnesses including discriminatee wit-

nesses. The ALJ out of hand refused to do so because in

his view it is the Board’s long established firm policy not

to do so. This ruling prevented Stark from making a full

and fair record upon which the critical credibility issues

could be determined.

This case constitutes ‘‘a classic case for sequestration—

a principle whose lineage is traced back to Daniel’s ef-

fective cross-examination of the elders who traduced

Susana, see 6 Wigmore, Evidence § 1837 at 347-48 (3d Ed.

1940), and whose high standing in the law of evidence is

attested by the quaint practice of referring to it simply

as ‘the rule’ ’’ (48a).

“The rule” is a simple and time tested method for help-

ing to discover the truth and is an evidentiary doctrine

which courts, under § 10(b) of the Act, should enforce upon

the Board. The court below reviewed the amendments,

over the years, to the Act, and concluded that it is for the

judiciary to determine how closely Board proceedings must

conform to the procedures in the district courts. (45a)

The Court have ruled that ‘tthe rule” should be applied to

Board hearings. N.L.R.B. v. Quality & Service Laundry,

Inc., 131 F.2d 182, 183 (4 Cir. 1942) cert. denied, 318 U.S.

775 (1943); N.L.RB. v. Burke Machine Tool Co., 133 F.2d

618, 621 (6 Cir. 1943). The Board, however, has refused

to apply the rule to alleged discriminatees. Jacques Power

Saw Co., 85 NLRB 440, 443 (1949); Donald Trettenero, 129

NLRB 619 n.1 (1960).

The Court below ruled that the ALJ should have had

authority to apply “the rule” to discriminatees because the

interest of the General Counsel of the Board should be—

not that he “shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935)’’. (50a)

Beyond that, the judicial decisions that have developed the

‘*party’’ exception scarcely took into consideration the

situation that frequently oceurs in §8(a)(3) of the Act

(29 U.S.C. §158(a)(3)) proceedings where several em-

ployees may be testifying to a single event on one side (as

in our case), whereas the other side is presented by a single

witness (as in our case).

The Court below, although finding the refusal to

sequester to be an abuse of discretion because the ALJ

felt he had no authority to apply ‘‘the rule”, nevertheless

enforced the Board’s order. The ALJ’s refusal to

sequester was reversible error.

‘«. . . [W]e have had, do have and will continue to have

an adversary system designed to arrive at the legal truth.

In such a system, the quality of justice dispensed . . . is

dependent upon a record being made wherein credibility of

witnesses may be properly tested”. (Judge Kaufman,

“Does a Judge Have A Right To Qualified Counsel,”

N.Y.L.J. March 27, 1975, p. 5, column 1).

“Due to this high degree of required serutiny which

enables the court of appeals to delve deeply into the evi-

dence and their power to reject findings of fact and modify

the NLRB decision and findings accordingly,” of course

. . “before a determination of fact will be considered

conclusive, the parties must have been afforded an op-

portunity for a full and fair disclosure of the facts.”

27 No. 1, Administrative Law Review, Section of Ad-

ministrative Law, ABA, Winter 1975, p. 96.

The ALJ, out of hand, without exercising any discretion

on his part, did not apply “the rule” because it is the

Board's uniform practice not to apply the rule to alleged

discriminatees. His refusal to do so constituted error that

could not have failed to prejudice Stark.

We submit that in arriving at the truth the ALJ should

have applied the “rule.’’

Due process mandates that the Petitioner’s request for

the sequestration of witnesses should have been granted.

The failure so to do resulted in a denial of a fair trial to

the Petitioner.

“Justice under law is, of course, the ultimate

goal . . .” (N.L.R.B. v. Rex Disposables, 491

F.2d 588, 591 [5 Cir. 1974]).

The position that it is a long established uniform Board

policy that alleged discriminatees can never be seques-

LEE AIEEE SL PLES TOIL STUBS EOIN BN

tered denies Stark the opportunity for a full and fair

disclosure of the facts, thereby resulting in the denial of

a fair hearing.

Not only did the ALJ deny sequestration but in his de-

cision he relied strongly on the novel theory that if there

was fabrication, it seems more probably that it was the

one witness (Stark) rather than the four discriminatees

who were lying, because “the likelihood of perjury or mis-

take becomes more remote in direct or geometrical pro-

portion to the number of witnesses who testify to a fact”.

“With deference we cannot feel the force of this reason-

ing.” (N.L.R.B. v. James Thompson & Co., 208 F.2d 748,

746 [2 Cir. 1953]). While a party is entitled to call as

many witnesses as he may deem necessary to establish his

claim or defense, . . . it is erroneous to suppose that an

issue is to be determined by a count of witnesses and

reference to numerical superiority . . . Witnesses are not

counted; their testimony is weighed . . .” (4 Jones on

Evidence, 6th Ed. 306-307).

We submit that the denial of sequestration deprived

Stark of a fair hearing. In one breath the Board says the

Judge must follow (and he did) its hard and fast rule of

no sequestration of alleged discriminatees, and in another

breath, it says that “It is the Board’s established policy

not to overrule an Administrative Law Judge’s resolu-

tions with respect to credibility . . . (Standard Dry Wall

Products, Inc., 91 NURB 544 [1950]).”) This Board poliey

overlooks the fact that: “[T]he Examiner . . . sees the

witnesses and hears them testify, while the Board and the

reviewing court looks only at cold records.” (NLRB v.

Walton Mfg. Co., 369 U.S. 404, 408 [1962]).

“The efficacy of excluding or sequestering witnesses has

long been recognized as a means of discouraging and ex-

posing fabrication, inaccuracy and collusion.” 4 Jones on

Evidence, 6th Ed. 543. See also 6 Wigmore, Evidence

sections 1837-1838. (3d Ed. 1940).

Rule 615 of the new Federal Rules of Evidence makes

sequestration a matter of right rather than one of discre-

tion. 4 Jones on Evidence 6th Edition 543 (Advisory Com-

mittee’s Note).

So far as practicable, Board hearings are to be con-

ducted in accordance with the rules of evidence applicable

in the federal district courts. See. 10(b) of the Act

“clearly relates to the introduction of evidence before the

Board.”’ (NLRB vy. Interboro Contractors Inc., 482 F.2d

854, 859 (2 Cir. 1970). While the Act commits to the Board

the power and responsibility of determining the facts as

revealed by the record, how can the Board intelligently

exercise such power and responsibility if it enforces a

fixed rule of no sequestration of alleged diseriminatees?

The enforcement of such a rule denies to Stark the most

effective tool “of discouraging and exposing fabrication,

inaccuracy and collusion’’. Jones, supra.

Stark having been denied the opportunity for a full and

fair disclosure of the facts before the Board made its order,

the court is not obliged to enforce it.

While the Board may adopt its own rules, it exceeds the

authority under the Act and acts arbitrarily when it en-

forces an inflexible rule. NLRB v. Vapor Blast Manufac-

turing Co., 287 F.2d 402 (7 Cir. 1961). The Board’s ar-

bitrary and unilateral refusal to permit any sequestration

of alleged discriminatees has deprived Stark of an oppor-

tunity for a full and fair disclosure of the facts. The

Board’s determination not to permit sequestration of al-

leged discriminatees exceeds its authority and is contrary

to the provisions of Sec. 10(b) of the Act. Because of such

a rule, the record made before the ALJ is one-sided in

favor of the Board. The record naturally preponderates

in the Board’s favor when it denies the opportunity of

discouraging and exposing fabrication and collusion by ab-

solutely refusing sequestration of alleged discriminatees.

Since the courts must determine whether substantial evi-

dence on the record as a whole supports the Board’s deci-

sion and in making such a determination the courts must

review all the evidence and not only that which supports

the Board’s decision, before such determination can be

made Stark must have been afforded an opportunity for a

full and fair disclosure of the facts. Such opportunity was

not afforded.

Courts should not enforce Board orders impregnated

with a hearing not comporting with the standards of fair-

ness inherent in procedural due process of law. The exclu-

sion of witnesses during trial is a time-honored practice

designed to prevent the shaping of testimony by hearing

what other witnesses say. 6 Wigmore, Evidence, § 1837-39

(3d Ed. 1940).

An order of the Board, even if otherwise justified by the

facts, is not just if obtained without due process of law.

Due process requirements forbid the Board to use evi-

dence that foreclosed Stark from properly attacking the

credibility of the witnesses. Bowman Transp. Inc. Vv.

Arkansas-Best Freight US. 95 S.Ct. 488 (1974).

“<The fundamental requisite of due process of law’ is the

opportunity to be heard.’ Grammis vy. Ordean, 234 U.S.

385, 384 (1914). The hearing must be ‘. . . in a meaning-

ful manner.’ Armstrong v. Manzo, 380 U.S. 545, 552

(1965).” Goldberg v. Kelley, 397 U.S. 254, 267 (1970).

2. The decision below is inconsistent with the 6th Cir-

cuit’s decision. This Court should resolve this in-

consistency. It is important in the administration

of the Act.

The court below although finding that the ALJ when

he had refused to exercise any discretion in applying “the

rule” had abused his discretion and further that a failure

to exercise that discretion in favor of sequestration would

have been an abuse of discretion, nevertheless enforced

the Board’s order. In N.L.R.B. v. Prettyman, 117 F.2d

786 (6th Cir. 1941), the 6th Circuit refused to enforce

a Board order, even if justified by the facts, since such

a Board order is not just if obtained without due process

of law. In denying enforcement without prejudice to a

new hearing the court said at pp. 791-792:

“The vast expansion of this field of administra-

tive regulation in response to the pressure of social

needs is made possible under our system by adher-

ence to the basie principles that the Legislature shall

appropriately determine the standards of adminis-

trative action and that in administrative proceedings

of a quasi judicial character the liberty and property

of the citizen shall be protected by the rudimentary

requirements of fair play. These demand ‘a fair and

open hearing,—essential alike to the legal validity of

the administrative regulation and to the maintenance

of public confidence in the value and soundness of this

important governmental process. Such a hearing has

been described as an ‘inexorable safeguard.’ ”

“Congress has given the Board the authority to ad-

minister the National Labor Relations Act, subject to

the supervisory power of the Court of Appeals and

the court must act within the bounds of the statute,

without intruding upon the administrative province,

but it may adjust its relief to the exigencies of the

case in accordance with the equitable principles

governing judicial action. Ford Motor Company v.

National Labor Relations Board, 305 U.S. 364, 373,

59 S.Ct. 301, 83 L.Ed. 221. The court is not compelled

to enforce an order of the Board which is impreg-

nated with a hearing not comporting with the stand-

ards of fairness inherent in procedural due process.

So scrupulous are our courts to maintain the suprem-

acy of the ordinary law in cases where officers of

the Government itself are concerned, they will not per-

mit the Government to profit in any way by wrongs

RR PR IE I SE NS Ie

which its officers have committed. Silverthorn Lum-

ber Company v. United States, 251 U.S. 385, 391, 40

S.Ct. 182, 64 L.Ed. 319, 24 A.L.R. 1426.

“The maintenance of proper standards on the part

of administrative agencies in the performance of their

quasi judicial functions is of the highest importance

and in no way cripples or embarrasses the exercise of

their appropriate authority.

“Even if the order of the Board were justified by

the facts, which we are not here deciding, the necessity

of according due process of law to the respondents is

not obviated. No order is just if obtained without due

process of law...”

Courts should not enforce an order of the Board which

is impregnated with a hearing not comporting with the

standards of fairness inherent in procedural due process.

CONCLUSION

For the foregoing reasons, petitioner respectfully

prays that this petition for a writ of certiorari be

granted.

Respectfully submitted,

Cuaries R. Karz

360 Lexington Avenue

New York, New York 10017

(212) 867-9140

Decision and Order of the NLRB.

JKP

213 NLRB No. 38 D—9067

New York, N.Y.

Unirep States oF AMERICA

BrEFoRE THE NaTIONAL LaBor RELATIONS Boarp

Frep Stark anp Jamaica 201 Sr.

Corp., Inc. anp Jamaica 202 Sr.

Corp., Inc.

and

LocaL 32B, Servick EMPLOYEES

IntTeRNATIONAL Union, AFL-CIO

Cases 29—CA—3600 and

29—_C A—3601

On May 31, 1974, Administrative Law Judge Charles W.

Schneider issued the attached Decision in this proceeding.

Thereafter, Respondents filed exceptions and a supporting

brief, and the General Counsel filed an answering brief.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National

The Respondents have excepted to certain credibility findings

made by the Administrative Law Judge. It is the Board’s estab-

lished policy not to overrule an Administrative Law Judge’s res-

olutions with respect to credibility unless the clear preponderance

of all of the relevant evidence convinces us that the resolutions are

incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd.

188 F.2d 362 (C.A. 3). We have carefully examined the record

and find no basis for reversing his findings.

Bm etre das ate

Decision and Order of the NLRB.

Labor Relations Board has delegated its authority in this

proceeding to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has de-

cided to affirm the rulings, findings,’ and conclusions of the

Administrative Law Judge and to adopt his recommended

Order, as modified herein.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Ad-

ministrative Law Judge, as modified, and hereby orders

that Respondents, Fred Stark and Jamaica 201 St. Corp.,

Inc. and Jamaica 202 St. Corp., Inc., New York, New York,

their partners, officers, agents, successors, and assigns,

Shall take the action set forth in the said recommended

Order, as modified below:

1. Substitute the following paragraph for paragraph

2(a):

“(a) Offer Charles Thompson, Roger Evans, Wayne

Huff, Jeffrey Maksymchak, Felipe Ortiz, and George

Peters immediate and full reinstatement to their former

jobs or, if those jobs no longer exist, to substantially equiv-

alent positions, without prejudice to their seniority or other

rights and privileges.”

2. Delete paragraph 2(b) and reletter the subsequent

paragraphs accordingly.

Decision and Order of the NLRB.

3. Substitute the attached notice for that of the Admin-

istrative Law Judge.

Dated, Washington, D.C. Sep 6 1974

Howard Jenkins, Jr., Member

Ralph E. Kennedy, Member

John A. Penello, Member

NationaL Laspor RELATIONS Boarp

(SEAL)

APPENDIX

Notice To EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

We Wu Nor discharge, or refuse to reinstate or

rehire employees, or subject them to demeaning condi-

tions of employment, because they join, support, assist,

or affiliate with Local 32B, Service Employees Inter-

national Union, AFL-CIO, or any other union, or be-

cause they sign cards for, or otherwise designate or

select, such Union or any other union as their bargain-

ing representative.

We Wi Nor question employees about their union

activity, affiliations, assistance, or support, or about

their selection of the Union or any other union.

We Wut Nort threaten employees with discharge or

other reprisals in employment if they assist, support,

or join a union, or select a union as their bargaining

representative.

Decision and Order of the NLRB.

We Wi offer Charles Thompson, Roger Evans,

Wayne Huff, Jeffrey Maksymchak, Felipe Ortiz, and

George Peters immediate and full reinstatement to

their former jobs or, if those jobs no longer exist, to

substantially equivalent positions, without prejudice to

their seniority or other rights and privileges, and we

will pay them for any losses sustained as a result of

their discharges, with 6-percent interest.

Frep Stark anp Jamaica 201 Sr.

Corp., Inc. ann Jamaica 202 Sr.

Corp., Inc.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material.

Any questions concerning this notice or compliance with

its provisions may be directed to the Board’s Office, 16

Court Street, Fourth Floor, Brooklyn, New York 11241,

Telephone 212—596—3535.

Decision of the Administrative Law Judge.

J D-371-74

Brooklyn, N.Y.

Unrtrep States oF AMERICA

Berore THE NATIONAL Laspor RELATIONS Boarp

Division oF JUDGES

Wasuinoron, D.C.

Frep Stark AND Jamaica 201 Sr.

Corp., Inc. anp Jamaica 202 Sr.

Corp., Inc.

and

Loca, 32B, Service EMPLOYEES

InTERNATIONAL Unton, AFL-CIO

Case Nos. 29-CA-3600

29-CA-3601

Elizabeth K. Johnson, Esq., for the

General Counsel.

Charles Katz, Esq., New York, N.Y.,

for the Respondent.

DECISION

Statement of the Case

Cuar.es W. Scunewer, Administrative Law Judge: On

October 18, 1973, Local 32B, Service Employees Interna-

tional Union, AFL-CIO, the Union, filed unfair labor prac-

tice charges against Fred Stark, Jamaica 201 St. Corp., Inc.

and Jamaica 202 St. Corp., Inc., herein collectively re-

ferred to as the Respondent, alleging commission by the

Respondent of unfair labor practices in violation of the

National Labor Relations Act (29 U.S.C. 151 et seq.). On

December 28, 1973, the Regional Director issued an Order

SPL SAEED + LO PLR I AT PIN, PBK IDI LEN

Decision of the Administrative Law Judge.

Consolidating the cases, accompanied by a Complaint and

Notice of Hearing. Service of the charges, the Order, and

the Complaint and Notice of Hearing was duly made on the

Respondent and the Union.

The Complaint alleged in sum that the Respondent, in

violation of Section 8(a)(1) and (3) of the Act, discharged

a number of employees, identified hereafter, interrogated

employees concerning union matters, and warned em-

ployees against affiliating with or supporting the Union.

The Respondent duly filed its answer, thereafter amended,

denying the commission of unfair labor practices.

Pursuant to notice a hearing was held in Brooklyn, New

York on March 12, 13 and 19, 1974. The General Counsel

and the Respondent appeared and were represented by

counsel. All parties were afforded full opportunity to be

heard, to introduce material evidence, to present oral argu-

ment, and to file briefs. Briefs were filed by the General

Counsel and the Respondent on April 29, 1974, and have

been considered.

Upon consideration of the entire record and the briefs,

and from my observation of the witnesses, I make the fol-

lowing:

Findings of Fact

I. The Business of the Respondent

Stark is a copartnership composed of Fred Stark, Har-

old Stark and Rita Stark, copartners, doing business under

the trade name and style of Fred Stark.

Jamaica 201 is and has been at all times material herein

a corporation duly organized under, andexisting by virtue

of, the laws of the State of New York.

See eh. CAL ee on i eee os le

orale PMEOH7

Decision of the Administrative Law Judge.

Jamaica 202 is and has been at all times material herein

a corporation duly organized under, and existing by virtue

of, the laws of the State of New York.

At all times material herein Stark has maintained its

principal office and place of business at 198-10 Jamaica

Avenue in the City of New York and State of New York

where it is, and has been at all times material herein, en-

gaged in the ownership and rental of commercial and resi-

dential buildings and properties.

At all times material herein Jamaica 201 and Jamaica

202 have maintained their principal offices and places of

business at 198-10 Jamaica Avenue, in the City of New

York, and State of New York where they are, and have

been at all times material herein, engaged in the rental of

residential real estate.

Stark, Jamaica 201 and Jamaica 202, herein collectively

referred to as the Respondent, are, and at all times ma-

terial herein have been, affiliated businesses with common

officers, ownership, directors and operators, and constitute

a single integrated business enterprise; the said directors

and operators formulate and administer a common labor

policy for the aforenamed concerns, affecting the employees

of said concerns.

During the past year, which period is representative of

its annual operations generally, the Respondent in the

course and conduct of its business, purchased and caused

to be transported and delivered to its place of business,

oil and other goods and materials valued in excess of

$50,000 of which goods and materials valued in excess of

$50,000 were transported and delivered to it, and received

from, other enterprises located in the State of New York,

each of which other enterprises had received the said

goods and materials in interstate commerce directly from

states of the United States other than the state in which

it is located.

Decision of the Administrative Law Judge.

During the same period, the Respondent received rental

revenue from residential properties in excess of $500,000

and rental revenue from commercial properties in excess

of $100,000. Said rental revenue from commercial proper-

ties included rent of at least $25,000 from enterprises

which annually purchase goods valued in excess of $50,000

from sources located outside the State of New York.

Respondent is and has been at all times material herein

an employer engaged in commerce within the meaning of

Section 2(2), (6) and (7) of the Act.

II. The Labor Organization Involved

Local 32B, Service Employees International Union,

AFL-CIO, is a labor organization within the meaning of

Section 2(5) of the Act.

III. The Unfair Labor Practices

Summary

On April 30, 1973, seven of the Respondent’s employees

signed authorization cards for the Union. On May 10,

1973, the Respondent received a letter from the Union re-

questing recognition. Within a week thereafter the em-

ployment of 6 of the 7 employees was terminated. The

General Counsel contends that the terminations were for

union activity; the Respondent contends that two of the

terminations were voluntary quittings and that the re-

mainder were for cause.

The Designations of the Union

On April 17, 1973, the Respondent signed a contract with

the Union covering one of the Respondent’s properties not

Decision of the Administrative Law Judge.

involved here. Upon learing of this, George Peters, a fore-

man for the Respondent, contacted the Union and ar-

ranged for an organizational meeting at his apartment.

The meeting was held on April 30, 1973. It was at-

tended by Peters, and by employees Charles Thompson,

Jeffrey Maksymehak, Roger Evans, Wayne Huff, Kenroy

Bishop, and Felipe Ortiz. The Union was represented by

Tony Poccio, an organizer. Each of the seven employees

signed an authorization card at the meeting. The Union

thereafter requested recognition by letter dated May 8,

which the Respondent received on May 10, 1973.

On the following day May 11, 1973, the employment of

Thompson, Evans, Huff, and Maksymchak was terminated.

At some unidentified date after receiving the Union’s

letter, Fred Stark, one of the Respondents, telephoned

Rudolph Larmond, an official of the Union, and asked what

it was “all about.” Advised by Larmond that the Union

wished to represent the employees and would like to nego-

tiate, Stark replied that there must be “some mistake’’

and asked who the people were. Larmond gave Stark two

or three names, to which Stark replied: “Oh, I fired them.

They’re all drunk, and T fired them.”

Larmond’s testimony, which is not denied, is credited.’

On May 16 Felipe Ortiz was terminated. And on the

following day, May 17, George Peters was discharged.

Contentions

The General Counsel contends that the six employees

were discharged for their union activity. The Respondent

‘The Regional Director subsequently dismissed a refusal to

bargain charge filed by the Union, on the ground that the Union

did not represent a majority of the employees.

10a

Decision of the Administrative Law Judge.

contends that Thompson quit, that Evans and Huff were

discharged for drunkenness, and Maksymchak for refus-

ing to work. The Respondent asserts that Ortiz was not

discharged but quit. With respect to Peters, the Respond-

ent’s contention is twofold: That Peters is a supervisor

and not an employee under the Act, and that he was dis-

charged for falsifying the reason he took a day off.

In essential particulars resolution of the issues is sub-

stantially dependent upon credibility determinations.

The terminations of Thompson, Evans,

Huff and Maksymchak

On May 11, 1973, Harold Stark, an official of the Com-

pany, and the son of Respondent Fred Stark, directed

Charles Thompson to take a crew consisting of Evans

and Huff to a building in the process of renovation, re-

move debris from the structure, and haul it away in the

Respondent’s truck.?

During the morning the employees completed the work

of cleaning up the first floor of the building and began

work in the basement. That, however, was a more diffi-

cult job involving, among other things, the hauling of

wet debris, including ashes, in 5 or 10-gallon pails, lug-

ging them a considerable distance across the basement,

up the stairs, and out to the truck. In the past in similar

situations 5 or 6 men had been assigned to form a chain

to perform the work. During or shortly after the lunch

* Except as otherwise indicated the findings herein are based

on uncontradicted and credited testimony. Where there is sig-

nificant conflict on material facts credibility resolutions are made.

Collateral occurrences which were the subject of testimony, but do

not directly bear on the issues, have been omitted from the recital

of facts.

lla

Decision of the Administrative Law Judge.

hour, Thompson suggested that more men were needed

for the job. The others agreed. The three thereupon

drove to the office of the Respondent some short distance

away for the purpose of asking Harold Stark to provide

more help.

They arrived at the office about 1 or shortly thereafter.

When they arrived Thompson went inside, for the pur-

pose, according to the testimony of the employees, to

find Harold Stark. Stark was not in the office. The 3

employees then sat in the truck to await his arrival. While

there they were joined by Maksymchak, a part-time

student-employee, who was just reporting for work.

Maksymchak was told by Stark’s secretary to await the

arrival of Helga Schenck, the Respondent’s office man-

ager. Miss Schenck was at that time at lunch and had

left word that when Maksymchak arrived he should wait

for her because she had an errand for him to do.

Thompson, Evans and Huff joined Maksymchak in the

latter’s station wagon to await the arrival of Harold

Stark. While they were waiting, Maksymchak said that

he was not feeling well, and did not think that he would

work that day. Under the arrangement with the Re-

spondent, Maksymchak’s schedule was flexible, and he was

not required to work regularly.*

’ The testimony of Stark’s secretary, Karen Gsell, is that when

Thompson came into the office Maksymehak was already there wait-

ing for Miss Schenck, that Thompson said that he had quit, and

told Mayksymchak that he wished to see him outside, and that the

two then left.

Thompson denied saying that he had quit. The testimony of

the employees, including Maksymchak, is that when Maksymchak

arrived at the office, Thompson, Evans and Huff were sitting in

the truck, waiting for Harold Stark to arrive.

In view of the whole pattern of events, and the subsequent oc-

eurrences, I conclude that Ms. Gsell misunderstood Thompson. It

is not apparent, and no reason is suggested, why he should have

quit, or waited with the others if he had. Cf. footnote 5.

12a

Decision of the Administrative Law Judge.

Sometime after one o’clock Helga Schenck returned

from lunch. According to her testimony she went out to

the car, and asked the 4 employees whether that was all

they had to do, and Thompson replied that he was not

going to work any more. She then went back into the

office, apparently without speaking to Maksymchak, though

that had been her primary purpose in coming out.

A short while later Harold Stark arrived and ap-

proached the car. According to the testimony of the 4

employees, Stark asked Maksymchak whether he was go-

ing to work that day, Maksymchak responding in the

negative, stating that he did not feel like working. Harold

Stark looked at the others and said that they were dis-

charged for being drunk.

Stark’s version of the incident is as follows: All but

Maksymchak were drunk. He asked the 4 men what they

were doing there and why they hadn’t finished the job.

Thompson replied that they were not doing the work, Huff

that they were done with it. Being unable to get any-

thing more coherent from Thompson, Evans, and Huff

because of their drunken condition, Stark told those three

that they were drunk, had not done the work, and were

fired. As to Maksymchak, Stark asked him whether he

was going to work or stay there. Receiving no response,

Stark said that if Maksymchak did not want to come to

work, he was fired too. He then walked away.

All four employees denied that they were drunk. All

testified that they had not had anything to drink that day.

Admittedly they did not deny Harold Stark’s accusation:

Their testimony as to that is that they had no opportunity,

that after discharging them, Stark immediately walked

away.

Credibility resolutions as to this incident are made here-

after.

MLE EAL ETI GE LETS IML LENIN LOE NE BRL II ALLA IRE TEI OE IE HRY TE MAA Ee

13a

Decision of the Administrative Law Judge.

Maksymchak’s requests for reinstatement

Maksymchak testified that on the day after the discharge

he returned to the Respondent and asked Harold Stark for

his job back. According to Maksymchak, Harold Stark

told him to wait a few weeks ‘‘till things cool off.’? Over

the next several months Maksymchak returned 4 or 5 times

without success. On the first occasion Harold Stark asked

Maksymchak why he joined the Union, and characterized

Maksymchak’s action “like stabbing me in the back.’’ On

a later occasion Stark told Maksymchak that he could have

his job back if he got out of the Union. Maksymchak said

that he would not do that, and thereafter ceased coming

back.

Maksymchak’s testimony concerning his requests for re-

instatement is not denied. I do not consider Harold Stark’s

general testimony to the effect that he did not “discuss”

the Union with employees to constitute a denial of

Maksymchak’s testimony as to his reinstatement requesis.

Credibility findings as to the incidents are made hereafter.

Evans’ request for reinstatement

On the Monday following the discharges, when Roger

Evans returned to the Respondent’s to get his pay, he asked

Harold Stark whether Stark could not give him and

Thompson another chance. Harold Stark’s testimony is

that he said no—‘‘that is the last chance you had.”

The May 14 conversation between George Peters

and Fred Stark

On Monday, May 14, 1973, Fred Stark and Harold Stark

came to a job site at 145th St. and Jamaica Avenue. Ac-

cording to the testimony of George Peters, while Harold

eo RQ AEE IS PE EN TI LS OL EF

l4a

Decision of the Administrative Law Judge.

Stark was inside the building, Fred Stark called Peters

aside outside the building, and told Peters that he had just

fired four of Peters’ men because they had joined the Union,

naming them. Fred Stark then said to Peters, “I’m

surprised at you, Mr. Peters, you’re supposed to be my

foreman, you know, you’re not supposed to be joining a

union . . . you stabbed me in the back.” Fred Stark went

on to say, however, that he would “forget all about it,’’ that

Peters could go back to work “and just stay away from the

union.” Peters’ testimony is that he said that he would

think about it.

Harold Stark admitted being at the location with his

father on the day in question, but denied that such a con-

versation, or any conversation between his father and

Peters, took place, terming it “impossible,” because he was

with his father during the entire time they were at the

premises. Peters’ testimony is that it was “impossible”

for Harold Stark to have heard the conversation, because

Harold was inside the building at the time. Fred Stark

did not testify, though present in the hearing room through-

out the hearing. The conflict is resolved at a later point.

The termination of Ortiz

Felipe Ortiz was a porter in one of the Respondent’s

apartment buildings, in which George Peters and his wife

Marie lived. Ortiz’ job was to keep the public portions of

the interior of the building clean, and also the exterior, in-

cluding the grounds. Ortiz was terminated on May 16, 1973,

according to the General Counsel, because he refused to

pick up dog manure on the grounds with his hands as

ordered by Harold Stark. According to the Respondent,

Ortiz quit rather than clean up the outside of the building.

Ortiz is primarily literate in the Spanish language. My

estimate, from observation of him as a witness, is that he

PREZ SF Fa

INE GD TRE LEP LIL PELE HET EL OT

BLEEL

15a

Decision of the Administrative Law Judge.

has small command of the English language. In addition

he is affected with a severe physical speech handicap. I

found him of such minimal intelligibility in the English

language as to require the services of a Spanish interpreter.

Because of the speech handicap, however, the interpreter

also had difficulty with substantial portions of Ortiz’ testi-

mony, a material part of which he found untranslateable.

Ortiz’ testimony to the effect that Harold Stark ordered

him to pick the dogs’ droppings with his hands was cor-

roborated by Mrs. Marie Peters and by employee Kenroy

Bishop. Both testified, consistently with Ortiz, that Mrs.

Peters and Ortiz protested that Ortiz should be allowed to

get a shovel and broom from the basement but that Harold

Stark insisted that Ortiz pick up the droppings with his

hands. When Ortiz refused, Stark told him that if he

would not do it, to go home.

Harold Stark denied that he ordered Ortiz to pick up the

dog droppings with his hands. His testimony is that Ortiz

refused to clean out litter, including dog manure, from

several bushes on the grounds, claiming that ‘hat was not

his job. Harold Stark’s testimony was corroborated by

Lawrence Moultrie, an employee.

Credibility resolutions are made hereafter.

May 17, 1973

1. The discharge of George Peters

On Tuesday, May 15, 1973, after work, George Peters

told Fred Stark that he would not be in the next day. When

Fred Stark asked him why, Peters replied that he had been

spitting blood and that he was going to the Veteran’s

Administration Hospital.‘ According to Peters, Fred

* Peters’ undisputed testimony is that he had this condition as

a consequence of an on-the-job injury incurred in the employment

of the Respondent about December 1971.

wet 4 as

EED THROUGH

16a

Decision of the Administrative Law Judge.

Stark told him to ‘‘make sure you stay away from the

Union.”’

Peters’ statement to Fred Stark was untrue. The real

reason he took off on May 16 was to take Charles Thomp-

son, Roger Evans, Wayne Huff, and Jeffrey Maksymchak

to the Union, where they gave affidavits concerning their

discharges. Peters’ testimony is that he did not tell Fred

Stark the truth because of the warning he had previouly

received from Stark concerning the Union.

On May 16, in the morning, Peters took the discharged

quartet to the Union headquarters in his car. They were

apparently observed by someone who reported the matter

to Fred Stark.

On the following morning when Peters reported at the

office he was discharged by Fred Stark. According to

Peters, Fred Stark said to him: ‘‘I see you went to the

Union again yesterday. I told you to stay from the Union

. evidentally, [sic] Mr. Peters, you don’t learn . . .

you’re fired. Give me all your keys.”’

Fred Stark did not testify as to the discharge of Peters.

Harold Stark testified that he was in the office at the time.

He denied Peters’ version of the incident. Harold Stark’s

testimony on direct examination as to the incident is as

follows:

Q. What happened when Peters came in?

A. Well, he walked in and then my father told him,

he says, ‘‘You are a liar and I don’t trust you.

You weren’t at the VA Hospital when you said you

were.”’

He says, ‘‘ You are fired’’ and let him go. That is

when he walked in.

Q. Did Peters say anything?

A. He didn’t say anything. He just walked around

and walked out.

BLEED ’

17a

Decision of the Administrative Law Judge.

Harold Stark also denied Peters’ testimony that Fred

Stark made the statements about the Union in the dis-

charge interview, to which Peters had testified.

Credibility findings are made hereafter.

2. Harold Stark’s statements

to Kenroy Bishop

On the same morning, shortly after Peters’ discharge,

according to the testimony of Kenroy Bishop, Harold Stark

spoke to him about the Union.

Bishop’s testimony is that Harold Stark took him into

: the back of the office and told him that he must ‘‘give up

: on the union, because it won’t come here.’’ According to

Bishop, Stark further said that ‘‘he had already fired

everybody who had signed for the union, except me.’’

Bishop testified that Harold Stark also said that he had

just fired Peters, but did not say why, or indicate that it

was because of the union.

Either on that occasion, or later in the day, according to

Bishop, Harold Stark told him that ‘‘the Union is no good

. . . they’re going to mess this place up.’’

Harold Stark testified that he did not ‘‘discuss’’ the

Union with employees. However, he did not specifically

deny or refer to these conversations in his testimony.

Credibility resolutions as to them are made hereafter.

Credibility Resolutions

and

Conclusions

As is apparent from the foregoing recital, the case re-

volves substantially around credibility resolutions. If the

substance of the General Counsel’s testimony is accepted

=D THROUGH

18a

Dectsion of the Administrative Law Judge.

the complaint is substantiated. If the substance of the

testimony of the Respondent is accepted the complaint

falls. It seems apparent that, in a number of instances,

there must be deliberate falsification of testimony by one

side or the other. It is not possible that there could be

honest misunderstanding with respect to some of the inci-

dents.

Both the General Counsel and the Respondent insist

upon the credibility of their witnesses and the incredibility

of the opposing testimony. The Respondent’s brief is

devoted almost wholly to an attack upon the credibility of

the General Counsel’s witnesses. To this end counsel for

the Respondent has painstakingly analyzed all the evidence

of the witnesses and has pointed out various inconsisten-

cies in the testimony of the witnesses for the General

Counsel. These exist, but so do inconsistencies in the tes-

timony of the Respondent’s witnesses. In arriving at the

findings herein I have taken into consideration the fact that

the Respondent had previously entered into a collective-

bargaining contract with the Union covering another seg-

ment of the Respondent’s operations.

In determining who is to be believed, certain background

and objective factors must be considered. Thus, we begin

with the fact that on the day after the Respondent received

the letter from the Union advising the Respondent of the

Union’s claim to recognition, four of the seven employees

who had designated the Union were terminated. And

within 6 days thereafter two more were terminated.

Coincidence, of course, is not a substitute for proof, but

neither may it be ignored in determining the existence of

proof.

Also, some of the General Counsel’s evidence and testi-

money indicative of opposition by the Respondent to the

19a

Decision of the Administrative Law Judge.

Union is not specifically denied. As has been seen, Harold

Stark told Kenroy Bishop that he had fired everybody who

had signed for the Union except Bishop, and that the Union

was no good and would mess the place up. The Respondent

attacks Bishop’s testimony as a deliberate lie. However, it

has been noted that, although Harold Stark testified in

general terms that he did not discuss the Union with em-

ployees, he did not specifically deny Bishop’s testimony as

to these statements. I do not find persuasive the supposi-

tion that the only remaining member of the group which

had signed union cards who had not been discharged, and

who at the time of his testimony was still in the Respond-

ent’s employ, would deliberately fabricate testimony

against the Respondent. In addition it is to be noted that

Bishop’s testimony does not attribute to Harold Stark a

declaration that Stark had fired the employees for union

activity. I think it a fair inference that if Bishop were

deliberately lying he would have added that admission by

Stark. These factors appear to me confirmative of my con-

clusion, based on observation of Bishop’s demeanor, that

Bishop is a credible witness.

It will also be recalled that Maksymehak testified that

after repeated efforts to have Harold Stark rehire him,

Stark finally told him that he could have his job back if he

got out of the Union. This testimony is also not specifically

denied. In the light of that fact, and the further fact that

the Respondent offered no explanation for its failure to

rehire Maksymchak, and from my observation of the wit-

nesses, I credit Maksymchak’s testimony in that regard.

In addition, in a number of important instances Harold

Stark’s testimony is not corroborated, though it was within

the Respondent’s power todo so. Thus, Fred Stark was not

called as a witness, though present in the hearing room

throughout the hearing. No explanation is advanced for

20a

Decision of the Administrative Law Judge.

this omission. In the incidents involving George Peters and

Fred Stark, all disputed, the Respondent relies solely on the

testimony of Harold Stark.

The Respondent, citing N.L.R.B. v. Century Broadcasting

Co., 419 F. 2d 771, 776-77 (8th Cir. 1969), appears to con-

tend that no adverse inference can be drawn from its failure

to call Fred Stark. It is true, as the Court held in the

Century Broadcasting case, that the failure of a respondent

to present evidence has no effect on the burden of proof,

and no inferences of wrongdoing can be drawn from the

Respondent’s failure to disclaim the Board’s allegations.

However, where the General Counsel presents evidence

which, if accepted, establishes a material fact, the failure of

a respondent to produce evidence, including testimony, in

its possession or control with respect to the existence or

nonexistence of the fact, is a relevant consideration in

determining whether to find the fact. See Goodyear Tire &

Rubber Company, 190 NLRB 84, 86, fn. 3; N.L.R.B. v.

Monumental Life Insurance Company, 162 F. 2d 340, 343

(6th Cir. 1947). The Century Broadcasting case is not con-

trary authority in that regard. The issue there was simply

whether, in the absence of any evidence by the General

Counsel to establish the existence of company knowledge

of union activities, the Board could properly find that the

Respondent’s failure to introduce evidence denying such

knowledge, warranted an inference that the knowledge

existed. No such situation is presented here, In each in-

stance where significance has been found in the Respond-

ent’s failure to present evidence in its possession respecting

a material issue, there is evidence in the record which, if

accepted, establishes the existence of the fact found.

We turn then to the particular incidents which are in

dispute.

2la

Decision of the Administrative Law Judge.

The May 11 terminations

Here, too, the dispositive issue is which is the correct

testimony, or which more closely approximates the facts:

the General Counsel’s or the Respondent’s? The Respond-

ent’s position is that the General Counsel’s witnesses lied.

We begin with the contentions: The General Counsel’s

is that Thompson, Evans, and Huff were awaiting the ar-

rival of Harold Stark in order to get help on the job, that

Maksymehak, because he was not feeling well, had tenta-

tively decided not to work that day, and that none of the

employees had had anything to drink. The Respondent’s

contention is that Thompson quit, that Evans and Huff

were discharged for being drunk, and Maksymchak dis-

charged for refusing to work.°

The Respondent’s contention to the effect that Thompson

quit is apparently based on the testimony of Karen Gsell,

which was referred to in footnote 3, supra. As indicated

there, I have concluded from all the circumstances that she

misunderstood Thompson. I therefore find that Thompson

was discharged.°

Harold Stark’s testimony to the effect that Thompson,

Evans and Huff were drunk, and that of the employees to

*In oral argument the Respondent suggested that the quartet

were refusing to work in order to compel the Respondent to recog-

nize the Union. If that were so, the employees’ action would have

constituted a strike. Under ordinary circumstances, various ex-

ceptions aside, a strike for recognition is a protected concerted

activity, and discharges therefore would constitute unfair labor

practices. However, there is no evidence here suggesting such a

strike. The Respondent does not contend that it discharged any

of the employees for that reason, There is therefore no need to

consider that question.

*The Respondent’s answer, which originally admitted the dis-

charge of Thompson, was amended at the hearing to allege that he

quit.

22a

Decision of the Administrative Law Judge.

the effect that they had had nothing to drink that day, thus

collide head-on—the uncorroborated testimony of Stark

against the mutually supportive testimony of the 4 em-

ployees.

If there was fabrication, it would seem more probable

that it was the one, rather than the four, who was lying.

It is, of course, possible that the testimony of four can be

contrived, and that of one truthful; however the likelihood

of perjury or mistake becomes more remote in direct, or

even geometrical, proportion to the number of persons who

testify to a fact.

Furthermore it is of significance that during the same

period of time, two others of the Respondent’s witnesses,

Karen Gsell and Helga Schenck, had occasion to talk to or

to observe one or all of the four. Neither testified that any

of them were drunk or gave evidence of drinking. Indeed

Helga Schenck specifically disclaimed any such assertion.

In these circumstances it appears to me that the objective

factors are supportive of my conclusion based on observa-

tion of the witnesses, that the testimony of the four em-

ployees is to be accepted and that of Harold Stark rejected.

In that connection I have not overlooked the fact that

Roger Evans had on an occasion in the past been sent home

for drinking and given his job back on condition that he no

longer drink on the job. Nor the Respondent’s undenied

evidence that Huff in the past had been drinking on the

job. There is no evidence however that any such, or other,

complaint had ever been made concerning Thompson, |

have also taken into consideration the fact that Harold

Stark had spoken to employees generally, though ad-

mittedly to no one in particular, warning them about drink-

ing on the job. I think it not without significance in this

respect that when Roger Evans applied for reinstatement

on behalf of himself and Thompson he was told by Harold

EE INARI GI TUS GTIPL IN REIN MIL OILS LIL! PULA LAL NI IAS DOLE

23a

Decision of the Administrative Law Judge.

Stark that they bad had their ‘‘last chance.” Clearly

Thompson had had no last chance. Nor had Maksymchak.

For so far as the contentions and the evidence reveals,

Maksymchak had never theretofore given the Respondent

any cause for dissatisfaction.

In other instances, related hereafter, | find myself unable

to accept the testimony of Harold Stark where denied by

6 other witnesses. On the basis of my judgment as to the

b credibility of the witnesses, and in the light of the objective

: circumstances, | am unable to accept Harold Stark’s testi-

mony as to the May 11 terminations. I accept as sub-

stantially correct the testimony of the General Counsel’s

witnesses in that respect. To be sure, that testimony some-

times varies as to detail, but such fact, rather than de-

tracting from credibility, appears to refute the suggestion

that the stories were contrived, or rehearsed.

The discharge of Ortiz

The ineident involving the termination of Ortiz is also

a credibility problem. The simple factual issue is whether,

as Ortiz, Mrs. Peters, and Kenroy Bishop testified, Harold

Stark ordered Ortiz to pick up the dog droppings with his

hands rather than permitting him to get a broom and

shovel, or whether, as Harold Stark and Lawrence

Moultrie testified, Ortiz refused to clean out the bushes,

claiming that it was not his job.

a ee a

In view of Ortiz’ limited English, and his speech

handicap, it might have been possible, but for two facts,

to conclude that the whole business involved a simple mis-

understanding—on Ortiz’ part as to what he understood

Harold Stark to be directing him to do, and on Harold

Stark’s part as to what he understood Ortiz to be refusing

to do. However, I deem this not possible for two reasons,

2 ARE IGT ESI IREL GIMTE AY Het

UR OCH En: ORBAN | AO OW

24a

Decision of the Administrative Law Judge.

(1), the conflicting testimony of Stark, Moultrie, Mrs.

Peters, and Bishop, all literate in English, as to what Stark

directed, and (2) the unexplained failure of the Respondent

to offer Ortiz his job back. In addition to any conclusion

based upon observation of the witnesses, I deem the latter

circumstance of significance in determining the facts of the

incident.

If the Respondent’s testimony as to the incident is true,

the Respondent may have been aware within 5 weeks there-

after that Ortiz had misunderstood what Harold Stark had

been directing him to do. For on June 25, 1973, a hear-

ing was held before an unemployment insurance referee of

the State of New York on Ortiz’ claim for unemployment

compensation. The referee found that Ortiz had refused

to clean up the front of the building, though provided with

equipment, such as brooms, pails and shovels. He was

therefore denied compensation on the ground that he had

refused to carry out the legitimate orders of his employer.

Ortiz’ testimony before the referee was presumably no dif-

ferent than that before me—if it was intelligible—but the

referee accepted the testimony of the Respondent.’

In any event, at the instant hearing the Respondent was

unquestionably made aware of Ortiz’ asserted understand-

ing of Harold Stark’s order. The Respondent was thus in

in a position to clarify the entire episode and perhaps make

the issue completely academic by simply offering Ortiz his

job back on condition that he clean up the bushes using a

broom and shovel. This the Respondent, without explana-

tion, declined to do. I consider that circumstance to be

* Apparently Ortiz testified in English at the unemployment

insurance hearing. In view of my experience with Ortiz, I am ata

loss to comprehend how he could have been understood in English.

Portions of the transcript of that hearing, read into the instant

record, are of no significant help on the issues.

——IE

25a

Decision of the Administrative Law Judge.

inconsistent with the Respondent’s version of the event.*

Upon the basis of my observation of the witnesses to the

incident who testified before me, I accept and credit the

testimony of Kenroy Bishop, Mrs. Peters, and Ortiz as to

the circumstances of Ortiz’ termination, and reject that of

Harold Stark and Moultrie. I deem that conclusion to be

reinforced by the objective circumstances.’

The May 14, 1974 conversation between

Fred Stark and George Peters

The facts as to this incident have been given above,

pages 7 and 8. Harold Stark denies that his father made

the statements attributed to him by Peters, testifying that

he was there the entire time. Peters’ testimony is that

* At the hearing the Respondent sought to question Ortiz as to

whether he wished his job back. Upon objection by the General

Counsel I ruled the issue irrelevant unless the Respondent was

prepared to offer Ortiz his job. The Respondent’s reply was that

it was not prepared to make such an offer.

®In attacking the credibility of Ortiz the Respondent states

that Ortiz’ demeanor on the witness stand discloses that when

given an order to work he flies off the handle and becomes angry.

This is based on an incident which occurred during the hearing.

As has been related, communication with Ortiz was difficult. At

one point during the hearing, when the interpreter stated that he

was unable to comprehend the answer of Ortiz, Ortiz stood up,

banged on the witness stand in an apparently angry manner, spoke

volubly (apparently in Spanish), made a gesture, and then sat

down. The interpreter was able to translate only a portion of

Ortiz’ statements:

The Interpreter: Just, I go home, and I think Spanish,

English, Spanish, English. That’s all I could get. Interpreter,

Spanish. I understand—he’s saying the interpreter under-

stands a lot of Spanish.”

In my judgment this incident merely reflected the witness’

frustration with his inability to communicate.

;

“SaRNLINS ESI ene eee

Te aoe tee Te

De at nates

PR ATEN ETRE RN NORD MIRE OM

26a

Decision of the Administrative Law Judge.

Fred Stark called him aside and spoke to him alone. Fred

Stark did not testify. I have previously declined to accept

Harold Stark’s testimony in connection with the May 11

and the Ortiz discharges. Similarly I am unable to credit

his testimony in this instance, particularly in the absence

of testimony by Fred Stark. In addition, since Harold

Stark’s evidence in this regard was mainly negative (that

is, a denial that anything occurred), I find it difficult to

accept the essential premise that he would remember being

on the job site at 145th St. and Jamaica Avenue on May

14, 1973 between 12 and 1 o’clock in the company of his

father. Secondly, assuming that he did recall being there

on that date and time, it seems even more providential that

he would have been able to remember 10 months later that

it was “impossible” for his father to have spoken to Peters

on that occasion outside Harold Stark’s hearing. Indeed,

Harold Stark testified that his father did not say anything

to Peters in his presence. Since Peters was the Respond-

ent’s foreman on the job, it seems implausible that there

would have been no communication between Fred Stark

and Peters. These circumstances thus appear to confirm

my conclusion, based upon observation and demeanor, that

the testimony of Harold Stark is not to be credited. I have

not overlooked the fact that Peters has had two convictions

for felony, pleaded guilty to a misdemeanor (assault),

served time in prison, and was also found to have violated

his parole. After weighing those circumstances and con-

sidering them in connection with my appraisal of the wit-

nesses, and the entire congery of facts, I have concluded

that Peters’ testimony as to this incident is to be credited.

The discharge of George Peters

Here again, the testimony is solely that of George Peters

against that of Harold Stark, and again we have no testi-

mony from Fred Stark, who effectuated the discharge. On

RS Fe FL SEAT

OT EIT IE ETT SEL

27a

Decision of the Administrative Law Judge.

the basis of my prior determination as to the respective

credibility of the witnesses, and in the light of the entire

facts of record, I accept George Peters’ testimony in this

instance also, and reject that of Harold Stark.

The reasons for the terminations

It has been found that the reasons ascribed by the Re-

tb spondent for the terminations of the employees are not

substantiated by the evidence, and in some instances con-

flicting. Thompson, Evans and Huff were not drunk or

drinking. Maksymchak did not refuse to work. Ortiz did

not refuse to clean up the dog droppings with a broom and

shovel. Though originally admitting that Thompson was

discharged, the Respondent now contends that he quit.

And while it now asserts that Peters was discharged for

lying, it gave the New York State unemployment compen-

sation authorities a completely different explanation when

Peters applied for unemployment compensation. There

the Respondent stated that Peters had been discharged for

misappropriation of a refrigerator and ‘‘misconduct,”’ alle-

gations which those authorities found unsustained.

FEE FO ES IF OS I

MoDeT EP Tse

While Evans and Huff had been previously warned about

drinking on the job, and Evans given a ‘‘last chance’’, no

f such chance was given Thompson, who had never before

: been involved in any drinking incident. And though there

is no evidence that Maksymchak had ever before given the

Respondent cause for dissatisfaction, he was refused rein-

statement though repeatedly requesting it. The Respond-

ent, without explanation, declined to offer Ortiz his job

back, even though it is apparent, if the Respondent’s ac-

count of his termination were correct, that there could have

been a misunderstanding, which, if the Respondent were

acting in good faith, it should have been prepared to, and

which it would have been in its interest, to dispel.

28 pence pct ee reap ETE SEIT

;

PEERY ERIN SOLANGE IS ALL OM 6 2

atone Bleek Ol

ee P (Si il ELL IE AN ID ENOL APRA R IE ch PLIES ILE SAO SAGE

ea tae - .

Decision of the Administrative Law Judge.

Since the reasons advanced by the Respondent for the

discharges are thus untrue, what then were the real rea- :

sons? ;

Upon the evidence, the only reasonable conclusion left to

be drawn is that the discharges were because of the em-

ployees’ union activity. It has been seen that within 7 days 7

after the Respondent learned of the Union’s claim all but

one of the employees who signed union cards were dis-

charged. Apart from inference, there is specific evidence

indicative of anti-union motivation. Thus we have Fred

Stark’s admission to Peters in the May 14 conversation

that he had just fired 4 of Peters’ men because they had

joined the Union, and his statement to Peters in discharg-

ing him, that Peters had been told to stay away from the

Union but apparently could not ‘‘learn.’? Maksymchak

was finally told by Harold Stark that he could have his job

back if he got out of the Union. Harold Stark told Kenroy

Bishop that the Union was no good, would mess the place

up, that all the union men except Bishop had been dis-

charged, and that Bishop should get of the Union. In these

circumstances it must be concluded that the employees were

discharged because of their union activity.

The Respondent contends that it had no knowledge of the

union activity, Harold Stark testifying, for example, that

he was not advised by his father of the receipt of the

Union’s letter of May 8, until about May 13 or 14. I find

the Respondent’s contention incredible. There is direct

evidence of the Respondent’s knowledge in the evidence

recited above. Moreover, I deem it implausible that Fred

Stark would not have informed Harold Stark immediately

of his receipt of the Union letter. It seems evident that

the Respondent had sources of informtaion about employee

movements. Thus, apart from the direct evidence recited

heretofore, Fred Stark admittedly knew, according to

PEPER CS TR ni

POR

Decision of the Administrative Law Judge.

Harold Stark’s account, that Peters did not go to the Vet-

erans Administration on May 16. How he knew that is

not explained. There is no evidence that Fred Stark asked

Peters for an explanation. It thus seems a fair inference,

as Peters testified, that Fred Stark knew, not only that

Peters had not gone to the Veterans Administration, but

that he had gone to the Union instead.

Whether George Peters was a supervisor

The Respondent contends that George Peters was a

supervisor. The General Counsel contends the contrary.

If Peters was a supervisor, his discharge would not con-

stitute a violation of Section 8(a) (3).

Peters’ job title was foreman. His job appears to be

property maintenance. He was given his assignments by

Fred or Harold Stark each day, and assigned a crew of

two or more men, whom Peters would direct. He was not

required to sign in mornings, though other employees were.

He worked along with the crew. There is no evidence as

to his pay.” He was also assigned an apartment in which

to live, rent and utilities free. Since Peters’ discharge

the Respondent has not hired or designated a new foreman

to replace him. According to Harold Stark, Harold now

spends more time on the job, and less in the office, than he

did previously.

Peters’ employment status with the Respondent being

established, the burden is on the Respondent to show super-

visory status. Local 560, Teamsters (Pennsylvania R.R.

Co.), 127 NLRB 1327, 1330; Local 636 Plumbers (Detroit

Edison Co.), 123 NLRB 225, 230-231. The mere possession

7 Harold Stark was unable to supply this information at the

hearing.

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30a

Decision of the Administrative Law Judge.

of the title ‘‘foreman’’ does not establish supervisory au-

thority. Local 636, supra. And that one is “in charge”,

is also not sufficient. Local 560, supra.

The Respondent’s evidence as to Peters’ supervisory

status consists of testimony by Harold Stark and by em-

ployee Lawrence Moultrie. Moultrie’s evidence is of little

probative value. He at first testified in conclusory fashion

that Peters had discharged some employees. Further ex-

amination revealed that that testimony was based on an

incident in which Peters told 2 youths who would not work

to ‘‘work or go home.” The conclusory and unprobative

character of Moultrie’s testimony is evident from his tes-

timony as to what then happened:

The Witness: They left, they quit, he fired them.

The Witness: No, when I say quit, he fired them.

Then they left. That is what—they quit.

Harold Stark’s testimony is that Peters had authority

to discharge employees. In addition he testified that Pe-

ters once fired three youths who were not working. Specifi-

cally, Stark said that 1 to 2 years before, at the end of a 5

work day, Peters told him that the youths were fooling

around and were not working and that he had discharged

them.

Peters denied firing or recommending the firing of any-

one. With respect to the incident concerning the three

youths, Peter testified that they did not come back to work

after the breaktime at 10 a.m. and that at around 10:30

he called Fred Stark on the telephone and advised him of

the fact. At about 11 he again called Stark to say that

the youths had not come back. Fred Stark told him that

if they returned to send them to the office, which Peters

did when they returned around 2 p.m. Fred Stark did ;

OORT PAI TE I ELE BI EE ae

wae

3la

Decision of the Administrative Law Judge.

not, as we have seen, testify. I have previosly credited

Peters’ testimony in other particulars, and discredited

Harold Stark’s. In this instance I accept Peters’ testi-

mony and reject that of Harold Stark.

I therefore find that the evidence does not establish that

George Peters was a supervisor within the meaning of

the Act.

General conclusions

On the basis of the foregoing findings I find that the Re-

spondent discharged and failed and refused to reinstate

Charles Thompson, Roger Evans, Jeffrey Maksymchak,

Wayne Huff, Felipe Ortiz, and George Peters, because

they had joined and assisted the Union and engaged in

concerted activity for the purpose of collective bargaining

and mutual aid and protection. By such conduct the Re-

spondent violated Section 8(a)(1) and (3) of the Act.

It is further found that by interrogating and warning

Bishop and Peters concerning union activity, and by tell-

ing Maksymchak that he could have his job back if he got

out of the Union, the Respondent further violated Section

8(a)(1) of the Act.

IV. The Remedy

Having found that the Respondent has engaged in un-

fair labor practices I shall recommend that it cease and

desist therefrom and take certain affirmative action in

order to effectuate the policies of the Act.

It will be recommended that the Respondent offer

Thompson, Evans, Maksymchak, Huff, Ortiz, and Peters,

immediate and full reinstatement to their former or sub-

stantially equivalent positions, without prejudice to their

Bai PURE AEE SAS PES SORE EBT

whan Toe tr |

32a

Decision of the Administrative Law Judge.

seniority and other rights and privileges, and make each

of them whole for any loss they may have suffered by

reason of the discrimination against them. Such rein-

statement shall be effected, and any backpay found to be

due shall be computed, in accordance with the Board’s

usual policies in such cases.

Upon the foregoing findings and conclusions, and pur-

suant to Section 10(c) of the Act, I hereby issue the

following recommended :*

11Tn the event no exceptions are filed as provided by Section

102.46, of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Regula- :

tions, be adopted by the Board and become its findings, conclusions, j

and Order, and all objections thereto shall be deemed waived for

all purposes.

ORDER

Fred Stark, Jamaica 201 St. Corp., Inc., and Jamaica

202 St. Corp., Ine., New York, New York, their partners,

officers, agents, successors and assigns shall:

1. Cease and desist from:

(a) Discouraging membership in Local 32 B, Serv-

ice Employees International Union, AFL-CIO, or any other

labor organization, by discharging, refusing to reinstate

or to rehire, employees, or by subjecting them to demean-

ing conditions of employment, or otherwise discriminating

against them in any manner with regard to their hire and

tenure of employment or any term or condition of em-

ployment.

(b) Coercively interrogating employees concern-

ing union activities, sympathies or membership.

TA PITEASOED EES TIED ELLE EIEIO SBOE EL PE “pees ———

Re FMA ee SB a le eat ? ; "

33a

Decision of the Administrative Law Judge.

ployment for adherence to, or support or selection of a

union as a bargaining representative.

(d) In any other manner interfering with, re-

straining or coercing employees in the exercise of their

rights to self-organization, to form, join, or assist the

above-named labor organization, or any other labor or-

ganization, to bargain collectively through representatives

of their own choosing, and to engage in concerted activi-

ties for the purpose of collective bargaining or other

mutual aid or protection, or to refrain from any and all

such activities.

2. Take the following affirmative action necessary to

effectuate the policies of the Act:

(a) Offer Charles Thompson, Roger Evans,

Wayne Huff, Jeffrey Maksymchak, Felipe Ortiz, and

George Peters, immediate and full reinstatement to their

former or substantially equivalent positions, without

prejudice to their seniority or other rights and privileges.

(b) Notify the above-named employees, if pres-

ently serving in the Armed Forces of the United States,

of their right to full reinstatement upon application in

accordance with Selective Service Act and the Universal

Military Training and Service Act, as amended, after dis-

charge from the Armed Services.

chak, Ortiz and Peters for any loss of earnings suffered

by reason of the discrimination against them.

(d) Preserve and, upon request, make available to

the Board or its agents, for examination and copying, all

payroll records, social security payment records, time-

cards, personnel records and reports, and all other records

34a

Decision of the Administrative Law Judge.

necessary to analyze the amounts of backpay and the

rights of reinstatement due under the terms of this Order.

(e) Post at its places of business in New York,

New York, copies of the attached notice marked “Appen-

dix.”’* Copies of said notice, on forms provided by the

Regional Director for Region 29 of the National Labor

Relations Board, after being duly signed by Respondent’s

authorized representative, shall be posted by the Re-

spondent immediately upon receipt thereof, and main-

tained by it for 60 consecutive days thereafter, in

conspicuous places, including all places where notices to

employees are customarily posted. Reasonable steps shall

be taken by the Respondent to insure that said notices are

not altered, defaced, or covered by any other material.

(f) Notify the Regional Director for Region 29,

in writing, within 20 days from the receipt of this Deci-

sion, what steps have been taken to comply herewith.

Dated at Washington, D.C.

CuHarLtes W. ScHNEIDER

Charles W. Schneider

Administrative Law Judge

#2 In the event that the Board’s Order is enforced by a Judg-

ment of a United States Court of Appeals, the words in the notice

ing “PosTep By ORDER OF THE NaTIONAL LABOR RELATIONS

Boarp” shall be changed to read “PosTeD PURSUANT TO A JUDG-

MENT OF THE UNITED StaTEs CourT oF APPEALS ENFORCING AN

ORDER OF THE NaTIoNAL Lasor RELATIONS Boarp.”

OEE AE SS LAE ADELE SS LOI LOWELL EA LILLIE ARE,

Aen atte

TCA TS em 2 Oe

TON Re PEE SN,

i hee eT

35a

Dectsion of the Administrative Law Judge.

NOTICE TO

EMPLOYEES

(Szaz) (Sea)

POSTED BY ORDER OF THE

Nationau Lazor RELations Boarp

Aw AGENcy oF THE Unirep States GoveERNMENT

WE WILL NOT discharge, or refuse to reinstate or rehire

employees, or subject them to demeaning conditions of

employment, because they join, support, assist, or affiliate

with, Local 32B, Service Employees International Union,

AFL-CIO, or any other union, or because they sign cards

for, or otherwise designate or select such union or any

other union as their bargaining representatives.

WE WILL NOT question employees about their union

activity, affiliations, assistance, or support, or about their

selection of the Union or any other union.

WE WILL NOT threaten employees with discharge or

other reprisals in employment if they assist, support or

join a union, or select a union as their bargaining repre-

sentative.

WE WILL offer Charles Thompson, Roger Evans, Wayne

Huff, Jeffrey Maksymchak, Felipe Ortiz, and George

Peters, their jobs back and pay them for any losses sus-

tained as a result of their discharges.

Frep Stark anp Jamaica 201 Sr.

Corp., Inc. anp JAmaica 202 Sr.

Corp., Inc.

Pte Oe ee ee Oe oe ee ee a ee ae ey a ee ee ee

(Representative) (Title)

. PARIS EN TOE NI LTE hE Di SA aN LAR OTT | PR LL RET DPE ALF LOEEL OA baer

TN A,

36a

Decision of the Administrative Law Judge.

THIS IS AN OFFICIAL NOTICE AND MUST

NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concern-

ing this notice or compliance with its provisions may be

directed to the Board’s Office, 16 Court Street—4th Floor,

Brooklyn, New York 11241 (Tel. No. 212-596-3535.)

37a

Opinion of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

,’

No. 22—September Term, 1975.

(Argued September 17, 1975 Decided November 5, 1975.)

Docket No. 74-2658

yp.

Nationa, Lasor Retations Boarp,

Petitioner,

Vv.

Frep Stark and Jamaica 201 Sr. Corp., Inc. and

Jamaica 202 Sr. Corp., Inc.,

Respondents.

Before:

Frienpiy, TimBers and GuRFEIN.

Circuit Judges.

Petition by the National Labor Relations Board to en-

force an order, 213 NLRB No. 38, finding that respond-

ents had violated §§8(a)(3) and (1) of the National

Labor Relations Act by discriminatorily discharging and

refusing to reinstate six employees and §8(a)(1) by co-

ercively interrogating and warning three employees.

Enforcement granted.

+ oa

Grant Morris, Esq., National Labor Relations

Board, Washington, D.C. (Peter G. Nash,

General Counsel; John S. Irving, Deputy

38a

Opinion of the Court of Appeals.

General Counsel; Patrick Hardin, Associate

General Counsel; Elliott Moore, Deputy As-

sociate General Counsel; Allison W. Brown,

Jr., Esq., National Labor Relations Board,

Washington, D.C., of Counsel), for Pett-

tioner.

Cuartes R. Katz, Esq., New York, N.Y., for

Respondents.

7“

meee, 2

FRIENDLY, Circuit Judge:

The National Labor Relations Board seeks enforcement

of an order against employers dated September 6, 1974,

213 NLRB No. 38. The employers are Fred Stark (a

family partnership composed of Fred Stark, Harold Stark

and Rita Stark) and two affiliated corporations, Jamaica

201 St. Corp., Ine. and Jamaica 202 St. Corp., Inc., all

engaged in the ownership and rental of commercial and

residential buildings and properties. We shall refer to all

three as “respondent.” The order found that respondent

had violated §§ 8(a)(3) and (1) of the National Labor

Relations Act by the discriminatory discharge of, and

refusal to reinstate, six employees, Charles Thompson,

Roger Evans, Wayne Huff, Jeffrey Maksymchak, Felipe

Ortiz and George Peters, and had violated §8(a)(1) by

the coercive interrogation and warning of Peters and an-

other employee, Kenroy Bishop, and by offering to rein-

state Maksymchak if he left his union. The order contained

the usual provisions for ceasing and desisting and notice

posting, and for the providing of reinstatement and back

pay to the six discharged employees.

The story begins with respondent’s signature, on April

17, 1973, of a contract with Local 32B, Service Employees

a ee at i as.

PERM RERRER MAN STE CIE RAN CITI IRN IN DY FRY OE, Om YE INS STE RE 4

Se ae ke Se

39a

Opinion of the Court of Appeals.

International Union, AFL-CIO, the charging party herein

(hereafter the Union), relating to a property not here

involved. News of this led Peters, a foreman for respond-

ent, to arrange for an organizational meeting in his apart-

ment on April 30. The meeting was attended by Peters,

Thompson, Evans, Huff, Maksymchak, Ortiz, and Bishop,

all employed by respondent, and by a Union organizer.

Each of the seven employees signed an authorization card.

The Union requested recognition by letter dated May 8,

which respondent received on May 10.*

Four of the six discharges occurred on May 11. The day

began with Harold Stark’s sending Thompson, Evans and

Huff to remove debris from a building under renovation

and haul it away. During or shortly after the lunch hour,

Thompson suggested that more men were needed, the others

agreed, and they drove to respondent’s office to ask Harold

Stark to provide them. Stark was not there and the three

employees sat in the truck to await his arrival. They

were joined by Maksymchak, a part-time student employee

who had recently reported for work and had been told

by Harold Stark’s secretary, Karen Gsell, to await Stark’s

arrival so that he could be yiven his work assignment.

The four moved to Maksymchak’s station wagon; he an-

nounced he was not feeling well and did not think he would

work that afternoon. Stark soon arrived and asked Mak-

symchak whether he was going to work that day. Maksym-

chak answered in the negative, saying that he did not feel

like working. Stark thereupon discharged all four for being

drunk.

1 Respondent claimed that it employed 18 maintenance workers

during May, 1973; counsel for the Board disputed the precise num-

ber. The original charge issued against respondent alleged a viola-

tion of §8(a)(5) as well as §§ 8(a)(3) and (1); the § 8(a) (5)

charge was dismissed prior to the hearing on the basis that the

Union did not represent a majority of the employees.

Sao NOUR FARE STEED DR SIRT ee Urey

;

+S AVR Aiieg nett cane eo |

RSE UIT

40a

Opinion of the Court of Appeals.

This was the version given, with slight variations, by

the four employees, all of whom denied being drunk or,

indeed, having had anything to drink. Stark testified that

all but Maksymchak were drunk; that when he asked why

the three had not finished the assigned job, Thompson

answered that they weren’t doing it and Huff that they

were done with it; that he discharged the three for being

drunk and not working; and that he told Maksymchak that

if the latter didn’t want to come to work, he was fired too.

Maksymchak further testified that on the next day he

sought reinstatement; that Harold Stark asked him why he

had joined the Union which was ‘‘like stabbing me in the

back,’’ and told him to wait a few weeks; and that on a

later occasion Stark said he could have the job back if he

got out of the Union. Stark did not specifically deny these

incidents, although he made a general denial of discussing

the Union with any employee.

Peters testified that on May 14 Fred Stark (Harold

Stark’s father) said he had just fired four of Peters’ men

because they had joined the Union; that Fred Stark was

surprised at Peters’ having joined because ‘‘you’re sup-

posed to be my foreman’’; but that Stark said he would

forget it, and told Peters to go back to work with a warning

to ‘‘just stay away from the union.’’ Fred Stark did not

take the stand. Harold testified that he was with his father

at the time of the alleged conversation and that it had not

taken place; Peters, by contrast, had testified that Harold

was inside a building when Fred spoke to him.

On May 15 Peters told Fred Stark he would not be in on

the following day since he had been spitting blood and

was going to the Veterans’ Administration Hospital. Ac-

cording to Peters, Fred told him to stay away from the

Union. In fact, Peters had had no intention of going to

the hospital; instead he took Thompson, Evans, Huff and

Maksymchak to the Union to make out affidavits concern-

ing their discharge. According to Peters, Fred Stark fired

RINNE CN SANT PITY MEER ITI PROMS MNES HEME AH Fe OMNI

4la

Opinion of the Court of Appeals.

him the next morning because Peters wouldn't “learn.”

Again Fred did not testify but Harold, who heard the

May 17 conversation, quoted his father as saying only

| “You are a liar and I don’t trust you. You weren’t at the

VA Hospital when you said you were . . . You are fired.”

Meanwhile, Ortiz had been discharged on May 16. Un-

able to speak English intelligibly and having difficulty even

with an interpreter, he made the somewhat bizzare claim,

corroborated, however, by two other witnesses, that Harold

Stark had fired him for disobeying an order to pick up

dog stools with his hands rather than get a shovel and

broom. Harold Stark denied Ortiz’ story; his version was

that Ortiz refused to clean out litter, including the dog

stools, on the ground that this was not his job.

The final episode consists of a statement allegedly made

by Harold Stark to Bishop shortly after Peters’ discharge

on May 17. According to Bishop, Stark said that he had

already fired all the other card signers and that Bishop must

“give up on the union because it won't come in here.” Stark

did not deny this except for his general disclaimer of hav-

ing discussed the Union with employees.

One other piece of evidence should be mentioned. At

some date, unhappily not identified, Fred Stark called

Larmond, an official of the Union, about the Union’s letter

b demanding recognition and asked what it was “all about.”

Stark also inquired who had signed the cards. Larmond

gave “two or three names,” to which Stark replied, ‘‘Oh,

I fired them. They’re all drunk, and I fired them.”’

EF TERETE Et

II.

The Administrative Law Judge (ALJ) well summarized

the situation when he said:

As is apparent from the foregoing recital, the case

revolves substantially around credibility resolutions.

If the substance of the General Counsel’s testimony is

. ; Se

— — . ee

Sesh enemas

42a

Opinion of the Court of Appeals.

accepted the complaint is substantiated. If the sub-

stance of the testimony of the Respondent is accepted

the complaint falls. It seems apparent that, in a num-

ber of instances, there must be deliberate falsification

of testimony by one side or the other. It is not pos-

sible that there could be honest misunderstanding with

respect to some of the incidents.

In upholding his findings that the General Counsel’s wit-

nesses were credible and that Harold Stark was not, the

Board followed its ‘‘established policy not to overrule an

Administrative Law Judge’s resolutions with respect to

credibility unless the clear preponderance of all the rel-

evant evidence convinces us that the resolutions are in-

correct,’’ citing Standard Dry Wall Products, Inc., 91

NLRB 544 (1950), enforced, 188 F.2d 362 (3 Cir. 1951).

We in turn have long been committed to the view that we

will not upset a decision of the Board

when it accepts a finding of an Examiner which is

grounded upon (a) his disbelief in an orally testify-

ing witness’ testimony because of the witness’ de-

meanor or (b) the Examiner’s evaluation of oral tes-

timony as reliable, unless on its face it is hopelessly

incredible or flatly contradicts either a so-called ‘law

of nature’ or undisputed documentary testimony.

N.L.R.B. v. Dinion Coil Co., 201 F.2d 484, 490 (2 Cir. 1952)

(Frank, J.) (citations omitted). Both these sound posi-

tions rest, however, on the assumption that correct pro-

cedures have been followed in making the credibility find-

ings. Respondent contends that assumption is unwarranted

here.

At the outset of the hearing respondent’s counsel moved

for sequestration of witnesses “because in this case there

will be a very sharp issue of credibility involved”—the

sequestration to include the six alleged victims of discrim-

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43a

Opinion of the Court of Appeals.

inatory discharges. The ALJ stated he was prepared to

grant the motion except for these six, since in his view

‘‘{t]he Board’s uniform practice has been not to apply

the rule to those persons.” Respondent’s counsel, stating

that his real aim was to sequester the four men discharged

on May 11, then rejected the ALJ’s offer of sequestration-

in-part.

The first credibility issue determined by the ALJ in his

decision was the reason for the terminations of Thompson,

Evans, Huff and Maksymchak on May 11. The issue

whether three of these former employees were drunk was

a sharp one, and respondent’s case that this was the

cause for the discharge was strengthened by the fact that

the incident would seem to have preceded the telephone

call in which Larmond gave “two or three names” and

Fred Stark responded “[t]hey’re all drunk, and I fired

them.” The ALJ resolved the credibility issue against

respondent.

Had this been a court trial involving ordinary witnesses,

it would have constituted a classic case for sequestration

—a principle whose lineage is traced back to Daniel’s

effective cross-examination of the elders who traduced

Susanna, see 6 Wigmore, Evidence § 1837 at 347-48 (3d

ed. 1940), and whose high standing in the law of evidence

is attested by the quaint practice of referring to it simply

as “the rule.” The questions for us are whether a court

should require the NLRB to apply “the rule” to unfair

labor practice proceedings and, if that question be an-

swered affirmatively, what significance should be given to

the fact that particular witnesses are alleged discrimina-

tees.

II.

Section 10(b) of the National Labor Relations Act, as

enacted in 1935, 49 Stat. 449, 454, provided that “the rules

of evidence prevailing in courts of law or equity shall not

Se EWES AES EMRE HOE PILE A AIP LEE

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44a

Opinion of the Court of Appeals.

be controlling.” The Taft-Hartley Act significantly altered

this to read, 61 Stat. 136, 147 (1947):

Any such [unfair labor practice] proceeding shall, so

far as practicable, be conducted in accordance with

the rules of evidence applicable in the district courts

of the United States under the rules of civil procedure

for the district courts of the United States, adopted

by the Supreme Court of the United States... .

This change reflected the same attitude that led Congress

to alter the substantive standard of judicial review from

the formulation of the Wagner Act, §10(e), 49 Stat. 449,

454 (1935), ‘‘The findings of the Board as to the facts, if

supported by evidence, shall be conclusive,” to that of the

Taft-Hartley Act, §10(e), 61 Stat. 136, 148 (1947), “The

findings of the Board with respect to questions of fact

if supported by substantial evidence on the record con-

sidered as a whole shall be conclusive.’”* The §10(b)

amendment originated in the House of Representatives,

and the Committee Report submitted by Representative

Hartley makes clear that it was directed at what was per-

ceived to be the same evil, and inability of the courts of

appeals to require that Board determinations conform to

fact, as the proposed amendments to §10(e). H.R. Rep.

No. 245, 80th Cong., Ist Sess. 40-42 (1947), reprinted in

N.L.R.B., Legislative History of the Labor Management

Relations Act, 1947, at 331-33 (1948). Although the Senate

seems to have concurred in the House’s amendment to

* The history of these substitutive changes was authoritatively

described by Mr. Justice Frankfurter in Universal Camera Corp.

v. N.L.R.B., 340 U.S. 474, 476-91 (1951). It is to be noted, how-

ever, that, in contract to the provision concerning judicial review,

the rules of evidence provision of the Taft-Hartley Act cannot be

read in tandem with the Administrative Procedure Act, which has

different provisions. See 2 Davis, Administrative Law Treatise

§ 14.08 at 285-86 (1958).

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45a

Opinion of the Court of Appeals.

§10(b) on the basis that this merely restated current

Board practice—see 93 Cong. Rec. 6602 (1947) (remarks

of Sen. Taft), 2 Legislative History, supra, at 1542—

and because the phrase “so far as practicable” left the

trial examiner considerable discretion—see 93 Cong. Ree.

7002 (1947) (remarks of Sen. Taft), 2 Legislative History,

supra, at 1625—the legislative history in the House—see

also H.R. Rep. No. 510, 80th Cong., Ist Sess. 53 (1947),

1 Legislative History, supra, at 557—amply justifies the

view that §10(b) was intended to make clear that courts

of appeals have the power to review evidentiary rulings

in unfair labor practice proceedings, and that it is for

the judiciary to determine how closely those proceedings

must conform to the procedures used in the district courts.

Other courts of appeals have, without much discussion, ap-

parently adopted this view; see, e.g., N.L.R.B.a v. Capitol

Fish Co., 294 F.2d 868, 875 (5 Cir. 1961); General Engi-

neering, Inc. v. N.L.R.B., 341 F.2d 367, 374 (9 Cir. 1965).

Clearly “the rule,” which is not an exclusionary principle,

compare Davis, Administrative Law Text 271-76 (1972),

but a simple and time-tested method for helping to dis-

cover the truth, would rank high in a list of evidentiary

doctrines which courts, under §10(b), should enforce upon

the NLRB. The very fact that witnesses in such proceed-

ings, as in others, will very likely have discussed their

proposed testimony with counsel and among themselves

heightens the importance of preserving an opportunity

for the adverse party to develop inconsistencies.™

2a The effect of failure to sequester the discriminatee witnesses

was heightened by the ALJ’s novel view:

If there was fabrication, it would seem more probable that

it was the one, rather than the four, who was lying. It is, of

course, possible that the testimony of four can be contrived,

and that of one truthful; however, the likelihood of perjury

or mistake becomes more remote in direct, or even geometrical,

proportion to the number of persons who testify to a fact.

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46a

Opinion of the Court of Appeals.

Even before the tightening effected by the Taft-Hartley

Act, the Board had received two judicial instructions with

respect to application of “the rule.” In N.L.R.B. v. Quality

é Service Laundry, Inc., 131 F.2d 182, 183 (4 Cir. 1942),

cert, denied, 318 U.S. 775 (1943), a distinguished panel

(Parker, Soper and Dobie, C.JJ.) advised, in a per curiam

opinion, that in courts of law the issue whether or not

witnesses are to be separated ‘‘is a matter resting in the

sound discretion of the trial court” and that the same

principle “should be applied to hearings before the Board

or its examiners.” Shortly thereafter, Judge Florence Al-

len, writing in N.L.R.B. v. Burke Mach. Tool Co., 133 F.2d

618, 621 (6 Cir. 1943), put the matter more positively:

The breadth of the Board’s power emphasizes the

importance of striving for that atmosphere of perfect

impartiality which is so much to be desired in any

hearing to settle controversial issues. Rulings as to

the reception of evidence and the general conduct of

hearings should not only keep within the bounds of

broad discretion necessarily imposed upon the trial

examiner but also reflect an endeavor to impress the

employer, as well as the employee, that every reason-

able effort has been made to enable all parties to pre

sent their theory of what has transpired. In the

present case, the respondent seasonably moved for a

separation of witnesses as soon as it appeared that

the testimony of witnesses called by the Board would

be inconsistent with that of Rockwell. This motion

was denied and testimony of various employees who

had listened to similar testimony given by others was

received over respondent’s objection. These rulings

undoubtedly hampered effective cross-examination of

the Board’s witnesses by the respondent. Since the

testimony presented a serious conflict on several ma-

LAE ES ARTE ELLIE OEY ae

47a

Opinion of the Court of Appeals.

terial points, the effect of the course adopted upon

public confidence in the fairness of the proceedings

was unfortunate. While we think the rulings did not

constitute such an abuse of discretion as to require

denial of the petition for enforcement of the order,

the refusal to separate witnesses was nonetheless im-

provident.

In Shartle Brothers Machine Co., 60 NLRB 533 (1945),

the Board noted these decisions and said that while ‘‘it

would have been better practice to have granted motions

for the separation of witnesses,’’ denial was not prejudicial

error. This language was repeated in The National Lime

and Stone Company, 62 NLRB 282, 284 n.5 (1945), a case

which included a discriminatory discharge.

So far as we have been able to determine without the

aid of adequate briefing, the fons et origo of the Board’s

doctrine that ‘‘the rule’? was not to be applied to alleged

discriminatees because they ‘‘were not mere witnesses at

the hearing’’ but ‘‘in effect, they occupy the status of com-

plainants’’ was Jaques Power Saw Company, 85 NLRB

440, 443 (1949).* This has been followed in a long line of

cases: Lewis Karlton, 91 NLRB 1295 n.3 (1950); Walsh-

Lumpkin Wholesale Drug Co., 129 NLRB 294, 296 (1960),

enforced, 291 F.2d 751 (8 Cir. 1961) (per curiam order) ;

Donald L. Trettenero, 129 NLRB 610 n.1 (1960); T./.L.

Sportswear Corp., 131 NLRB 176 n.1 (1961), enforced, 302

The Board sought to buttress its position by saying “the Re-

spondent does not allege that [the witnesses’] testimony was im-

properly influenced in any way by their unrestricted presence in

the hearing room, nor has the Respondent shown any substantial

prejudice resulting therefrom,” citing the two courts of appeals

eases and its own decision in National Lime and Stone Company.

The _ did not discuss the effect of the 1947 amendment of

§ 10(b).

48a

Opinion of the Court of Appeals.

F.2d 186 (D.C. Cir. 1962) (no discussion of sequestration) ;

Sopps, Inc., 189 NLRB 822 & n.4 (1971).*

In light of this substantial body of precedent, the ALJ

was fully justified in saying that ‘‘[t]he Board’s uniform

practice has been not to apply the rule to [alleged dis-

criminatees].’’ Since he clearly and correctly thought he

had no discretion under Board practice, it is impossible

to sustain the first position taken by Board counsel, namely,

that the ALJ was exercising discretion ans did not abuse

it. Although the Board is on considerably stronger ground

in its alternative argument that its flat rule prohibiting

the sequestration of alleged discriminatees in § 8(a) (3)

proceedings is sustainable, this is not ultimately persuasive.

Despite Wigmore’s position that sequestration should

be demandable as of right when sought in good faith, 6

Evidence § 1839 (3d ed. 1940), the principle in the federal

courts prior to enactment of the Federal Rules of Evi-

dence, 88 Stat. 1926, effective July 1, 1975, was that it was

grantable in the discretion of the trial judge. See, e.g.,

Kaufman v. United States, 163 F.2d 404, 408 (6 Cir. 1947),

cert. denied, 333 U.S. 857 (1948) ; United States v. Postma,

242 F.2d 488, 494 (2 Cir.), cert. denied, 354 U.S. 922 (1957) ;

Williamson v. United States, 310 F.2d 192, 198 (9 Cir.

1962); Taylor v. United States, 388 F.2d 786, 788 (9 Cir.

1967). The question of the excludability of “parties’’ had

presented a problem, with most courts and statutes tend-

*A somewhat different approach was taken in Rickert Carbide

Die, Inc., 126 NLRB 757 n.3 (1960). There, in sustaining refusal

to sequester two discriminatees, the Board said:

The determination whether witnesses should be excluded from

a hearing is a matter within the discretion of the Trial Ex-

aminer. We find no abuse of discretion in this case especially

in view of the fact that the two whom the Respondent would

exclude filed the unfair labor practice charges in this proceed-

ing. As persons filing a charge, each was a “party” within the

Board’s Rules and entitled to participate fully in the hearing.

49a

Opinion of the Court of Appeals.

ing against exclusion but with some going the other way.

See 6 Wigmore, Evidence § 1841 at 364-65 (3d ed. 1940)

and 1972 Pocket Supplement at 161 notes 9 and 10. Now

Rule 615 has adopted Wigmore’s principle of mandatory

exclusion:

At the request of a party the court shall order wit-

nesses excluded so that they cannot hear the testimony

of other witnesses, and it may make the order of its

own motion.

but with the following equally mandatory qualification:

This rule does not authorize exclusion of (1) a party

who is a natural person, or (2) an officer or employee

of a party which is not a natural person designated as

its representative by its attorney, or (3) a person

whose presence is shown by a party to be essential to

the presentation of his cause.

While, as in this case, discriminatees are not usually

“parties”? within NLRB Rules and Regulations, 29 CFR

§ 102.8 (1974),° since they leave the filing of a charge to

their union, there is nothing to prevent their joining in

such a charge and we agree with the Board that decision

with respect to sequestration should not turn on whether

5 The term “party” as used herein shall mean the regional direc-

tor in whose region the proceeding is pending and any person

named or acAitted as a party, or properly seeking and entitled as

of right to be admitted as a party, in any Board proceeding, in-

cluding, without limitation, any person filing a charge or petition

under the act, any person named as respondent, as employer, or as

party to a contract in any proceeding under the act, and any labor

organization alleged to be dominated, assisted, or suported in viola-

tion of section 8(a)(1) or 8(a)(2) of the act; but nothing herein

shall be construed to prevent the Board or its designated agent

from limiting any party to participate in the proceedings to the

extent of his interest only.

BAP EN SEP EE PCLIE: Oy OPEMEES NEN DEER A ORL PDI A

50a

Opinion of the Court of Appeals.

they have done so in a particular case. On the other hand,

despite the recognition accorded to charging parties in

International Union, United Automobile, etc., Workers,

etc. v. Scofield, 382 U.S. 205, 217-21 (1965), an unfair labor

practice proceeding under §8(a)(3) is not the exact

equivalent of a private suit. The complaint is issued by

the Board acting through the regional director, 29 C.F.R.

§ 102.15 (1974), and when he has done so ‘‘and the pro-

ceeding reaches the adjudicative stage, the course the

hearing will take is in the agency’s control.” 382 U.S. at

219. In this case, as often happens, no lawyer appeared

for the charging party and the proceeding was conducted

solely by counsel for the General Counsel on the one hand

and counsel for the respondent on the other. Under such

circumstances one of the main reasons claimed for the

“party” exception, the need for his presence to guide his

own attorney, has diminished force. The interest of coun-

sel for the General Counsel, like that of an Assistant

United States Attorney, is—or should be—not that he

“shall win a case, but that justice shall be done,’’ Berger

v. United States, 295 U.S. 78, 88 (1935). Beyond that, the

judicial decisions that developed the “party’’ exception

scarcely took into account the situation that frequently

ocecurs in § 8(a)(3) proceedings where several employees

may be testifying to a single event on one side, whereas

the other side is presented by a single witness or, if more

than one, by officials or supervisory employees who are

not “parties” and can thus be put under “the rule.” To

the contrary, it seems that in many jurisdictions which

generally refused to compel sequestration of “parties,”

the term was given a restricted scope when the presence

of the witness in question was not necessary for the effec-

tive advocacy of the cause. This was notably true in First

Nat. Bank of Mobile v. Lartigue, 233 Ala. 670, 173 So. 21

(1937) (exclusion of potential distributees of an estate

= an

5la

Opinion of the Court of Appeals.

remains a matter for trial court’s discretion, since admin-

istrators are in charge of the suit, and, although the dis-

tributees “are said to be the parties in real interest,’’

there was “no showing . . . of any special need of such

persons to assist in the trial”). See also Kentucky Union

Lumber Co. v. Abney, 17 Ky. L. Rep. 401, 31 S.W. 279

(1895) (exclusion of “chief officer of the defendant corpo-

ration in said county [where suit tried] “within discre-

tion of trial judge, since not a ‘‘party,’’ ‘‘nor does it ap-

pear . . . that his presence was of vital importance to

a fair trial of the action”); compare Lenotr Car Co. v.

Smith, 100 Tenn. 127, 42 S.W. 879 (1897) (officer of a

corporation ‘‘whose presence during the trial was essen-

tial to the proper presentation of its case’’ entitled to re-

main in courtroom). Finally, the draftsmen of the Fed-

eral Rules were preparing rules for criminal as well as

civil cases. In the former, in view of the Sixth Amend-

ment, exclusion of a party would indeed “raise serious

problems of confrontation and due process,’’ as stated in

the Advisory Committee’s Note to Rule 615.° In contrast,

if enforcement of § 8(a)(3) were to take place through a

Government suit in a district court, we fail to see how

any constitutional problem would be created by applying

“the rule” to discriminatees, at least to the limited extent

of excluding them during the testimony given by fellow

discriminatees concerning a single event.

However, we need not decide whether, if somehow an

analogous situation were to arise in a district court, wit-

nesses occupying a position similar to discriminatees in

§ 8(a)(3) proceedings would be immune from sequestration

because of the second sentence of Rule 615. Under the di-

rection in §10(b) that the rules of evidence applicable in

the district courts shall be applied only “so far as prac-

* Such exclusion is, of course, prohibited by F.R.Cr.P. 43.

a Saat ie tm ie he TR TT nee aed

2B os “3 CREE R ERE Mere oA 9D TAC CO a

52a

Opinion of the Court of Appeals.

ticable,” the conduct of unfair labor practice proceedings

would not have to conform precisely to the second sentence

of Rule 615—even if the Federal Rules of Evidence had

been in effect when this hearing was held—so long as there

is substantial reason for fashioning a different rule. The

considerations so well stated by Judge Allen in N.L.R.B. v.

Burke Mach. Tool Co., supra, 133 F.2d at 621, dictate some

application of “the rule” in Labor Board hearings even

when the witnesses are alleged discriminatees. Exclusion of

discriminatees for a portion of the hearing, even if it were

to be assumed that, because of Rule 615, persons similarly

situated could not now be excluded in a similar type of

action in a district court—an assumption which may or may

not be valid—would be a small price for them to pay for

the General Counsel’s prosecuting the complaint on their

behalf. Weighing the relative importance of the presence

of a discriminatee at every moment of the trial to the

zealous advocacy of his cause against the danger that his

financial interest makes the temptation to perjury great,

and considering the imbalance from failure to apply “the

rule” to discriminatees while it would generally be ap-

plicable against the employer, we think that the ALJ

should have authority to apply “the rule’’ to discriminatees

and that, where several discriminatees are to be called as

witnesses to the same incident, the presumption in favor

of sequestration during such testimony could be rebutted,

if at all, only by a particularized showing of need for the

discriminatees to hear each other’s evidence—a showing we

find extremely hard to visualize. We hold, therefore, that

the ALJ should have had authority to sequester the four

employee witnesses during their respective testimony to the

May 11 events, and that, under the rather typical facts

here presented, failure to have exercised that discretion in

favor of sequestration would have been an abuse of discre-

tion.

5 RRS LOR TAPIA AG PLE alas ae

53a

Opinion of the Court of Appeals.

IV.

However, our holding on this point does not lead auto-

matically to a remand—much less to the denial of en-

forcement sought by respondent. Cf. N.L.R.B. v. Quality

& Service Laundry, supra. Apart from the repetitive testi-

mony of these four witnesses, the ALJ had extremely solid

ground for his credibility findings. Even as to the May 11

incident, the testimony of the four discriminatees found

support in that of the two office workers called by re-

spondent, one of whom denied that there were any signs

in the car that the men had been drinking and the other

of whom was asked no questions on the subject although

she had observed Thompson on the afternoon at issue.

In addition, although the ALJ used his findings that

Harold Stark had lied about the May 11 incident to dis-

credit some of Stark’s other testimony, he could equally

well have found that flaws in other testimony discredited

that in regard to May 11. We refer particularly to Harold

Stark’s failure to make specific denials of Maksymchak’s

testimony of what occurred on May 12 when Maksymchak

sought reinstatement, and of Bishop’s testimony concern-

ing the conversation on May 17, and to the failure to call

Fred Stark, who was present in the hearing room, to

answer Peters’ version of the incident of May 14 partic-

ularly after Peters had asserted that Harold could not

have heard them, and to repudiate Peters’ version of Fred

Stark’s statements of May 15 and May 17. In the ab-

sence of any explanation it would be hard to think of a

stronger case for drawing an adverse inference from fail-

ure to call a witness under a party’s control. 2 Wigmore,

Evidence $§ 285-86 (3d ed. 1940). Added to all this is the

fact that six of the seven union adherents were discharged,

and the seventh threatened, within a week of their sign-

ing the cards. It would tax credulity to the breaking point

FEDS Sais 7. ect SR SOE EIR COT RE IONE TED Pew

NB hay TS A RR RR OEE RENIN no ea eS)

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j4a

Opinion of the Court of Appeals.

to assume that this was mere coincidence bereft of any

casual connection.’

The only other point requiring discussion is respondent’s

contention that Peters was a supervisor within § 2(11)

and thus not an “employee,” § 2(3), protected by §§ 8(a) (1)

and (3). No useful purpose would be served by detailing

the evidence. It suffices to say that this created a close

question of fact whether Peters was “merely a superior

workman or lead man who exercises the control of a

skilled worker over less capable employees, or is a super-

visor who shares the power of management,” N.L.R.B. v.

Southern Bleachery & Print Works, 257 F.2d 235, 239,

(4 Cir. 1958), cert. denied, 359 U.S. 911 (1959). It is

settled law that the Board’s determination of this ques-

tion receives even more than usual weight. As Judge

Waterman said for us in N.L.R.B. v. Metropolitan Life

Ins. Co., 405 F.2d 1169, 1172 (2 Cir. 1968):

Inasmuch as infinite variations and gradations of au-

thority can exist . . . and any drawing of the line

between the personnel of management and the rank

and file workers may require some expertise in eval-

uating actual power distributions which exist within

an enterprise, the Board’s findings relative thereto are

entitled to great weight.

* Respondent claims that the record fails to show that it knew

of the employees’ union activities at the time they were fired, and

that, lacking such proof, the order cannnot stand; apparently the

claim is that the employer’s knowledge must be directly proven.

The law is clear that such direct evidence need not be introduced,

and that the employer’s knowledge can be inferred from the cir-

eumstances. N.L.R.B. v. Link-Belt Co., 311 U.S. 584, 602 (1941);

Amalgamated Clothing Workers v. N.L.R.B., 302 F.2d 186, 190

(D.C. Cir. 1962).

BL LAS RENE I LEAN I PRIS II

55a

Opinion of the Court of Appeals.

See accord, Amalgamated Local Union 355 v. N.L.R.B.,

481 F.2d 996, 999-1000 (2 Cir. 1973) (Davis, J.) ; Owl, Chem-

ical and Atomic Workers Int. U. v. N.L.R.B., 445 F.2d

237, 241 (D.C. Cir. 1971) (McGowan, J.).

Enforcement granted.

rT ete Mae ee

PEND E EE FAME IE LI AE CARR

PRB eR MRE AT WTS RO RAR LOE LF POPE TT

56a

Judgment of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

No. 74-2658

dp.

Natrona Lasor Reiations Boarp,

Petitioner,

Vv.

Frep Stark anp Jamaica 201 St. Corp., Inc.

AND JAmarca 202 Sr. Corp., Inc.,

Respondents.

’'

Before: Frrenpiy, Trpers and Gurrern, Circuit Judges.

Tuts Cause came on to be heard upon an application

of the National Labor Relations Board for enforcement

of a certain order issued by it against Respondents, Fred

Stark and Jamaica 201 St. Corp., Inc. and Jamaica 202

St. Corp., Inc., New York, New York, their partners, offi-

cers, agents, successors, and assigns, on September 6,

1947. The Court heard argument of respective counsel on

September 17, 1975, and has considered the briefs and

transcript of record filed in this cause. On November 5,

1975, the Court being fully advised in the premises,

handed down its decision granting enforeement of the

Board’s Order. In conformity therewith, it is hereby

ORDERED AND ApsupDGED by the United States Court of

Appeals for the Second Circuit that the said order of

the National Labor Relations Board in said proceeding

be enforced, and that the Respondents, Fred Stark and

Jamaica 201 St. Corp., Inc. and Jamaica 202 St. Corp.,

57a

Judgment of the Court of Appeals.

Inc., New York, New York, their partners, officers, agents,

successors, and assigns, abide by and perform the direc-

tions of the Board in said order contained.

Iv 1s FURTHER ORDERED AND ApsupceED by the Court that

costs shall be taxed against Respondents.

Henry FRIENDLY

Judge, United States Court of

Appeals for the Second Circuit

Wo. H. Trmsers

Judge, United States Court of

Appeals for the Second Circuit

Fitep: December 2, 1975

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.