Capitol Fish Co.

National Labor Relations Board - Board Decisions

Jan 24, 1963

140 N.L.R.B. 837 (N.L.R.B. 1963)

CAPITOL FISH COMPANY 837
Capitol Fish Company and Bennie Hill, Jr. and Porter Baldwin,
Jr. Cases Nos. 10-CA-3959 and 10-CA-3992. January 24, 1963
SUPPLEMENTAL DECISION AND ORDER
On March 7, 1960, the Board issued its Decision and Order in these
cases,' finding that the Respondent had violated Section 8 (a) (1) of
the National Labor Relations Act by interrogating its employees con-
cerning their union activities, by creating the impression of surveil-
lance of such activities, and by threatening reprisals and promising
benefits calculated to discourage such activities; and had violated
Section 8(a) (3) and (1) by discriminatorily discharging employee
Bennie Hill, Jr. The Board ordered the Respondent to cease and
desist from unfair labor practices found, and to take certain affirma-
tive action necessary to effectuate the policies of the Act. Thereafter,
on September 27, 1961, the United States Court of Appeals for the
Fifth Circuit remanded these cases to the Board for further proceed-
ings,' holding that : (1) the Trial Examiner had erroneously excluded
the testimony of the Board's attorney who investigated these cases;
(2) the Respondent could reasonably infer from the testimony of
certain witnesses that the investigating attorney had attempted, and,
in part, succeeded, in obtaining from prospective witnesses false or
twisted statements; and (3) the Respondent was entitled to an oppor-
tunity to support the inference by the attorney's own testimony, which
was not privileged and which would have an important bearing on
the credibility of all the witnesses who testified.
On March 13, 1962, the Board issued an Order in which it reopened
the record, remanded the cases to the Regional Director for further
hearing consistent with the remand of the court, and directed the
Trial Examiner, upon conclusion of the supplemental hearing, to
prepare and serve on the parties a Supplemental Intermediate Report
containing findings of fact upon the evidence received, conclusions of
law, and recommendations.
Pursuant to notice, a supplemental hearing was held on May 31,
1962, before Trial Examiner James F. Foley, who was the Trial
Examiner at the original hearing. All parties were afforded an op-
portunity to present evidence. The Board's investigating attorney,
Theodore H. Miller, appeared as a witness, and was examined and
cross-examined.
On October 31, 1962, the Trial Examiner issued his Supplemental
Intermediate Report, attached hereto, in which he (1) found that
Miller had not obtained nor attempted to obtain false or twisted state-
ments from prospective witnesses; (2) reaffirmed his credibility find-
1126 NLRB 980.
2 294 F. 2d 868 (C.A. 5).
140 NLRB No. 79.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings; and (3) recommended that all concluding findings in his Inter-
mediate Report and the Board's original Decision and Order be
affirmed.
Thereafter, the Respondent filed exceptions to the Supplemental
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
meinber panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the reopened hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has reconsidered
the entire record in these cases, including the Supplemental Inter-
mediate Report and the Respondent's exceptions and brief, and here-
by adopts the findings, conclusions, and recommendations of the Trial
Examiner.
The Board, therefore, affirms its original Order issued herein.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On September 27, 1961, in N L R B. v Capitol Fish Company , 294 F 2d 868
(1961), a proceeding initiated by the Board by a petition fc- enforcement of its order
in Capitol Fish Company, Cases Nos 10-CA-3959 and 3992 , 126 NLRB 980, the
Fifth Circuit held that this Trial Examiner erred at the hearing before him for taking
of the evidence in the Capitol Fish Company cases i when he (1) denied Respond-
ent's motion that the hearing be postponed until such time as the General Counsel
of the Board granted Theodore H Miller , Esq , the attorney on his staff who investi-
gated the case, permission to testify as witness for Respondent , and (2 ) when he
granted the motion of General Counsel to quash the subpena issued by the Regional
Director at the request of Respondent directing Miller to appear and testify for
Respondent at the hearing The court ruled that the "unrebutted testimony" of
Robert Poole supported the Respondent 's contention that the testimony of Miller,
the investigating attorney ,2 would have an important bearing on the credibility of
all the witnesses who testified against Respondent Capitol Fish , and was not privileged
It further ruled that fair trial procedures entitled Respondent to an opportunity to
support with Miller's own testimony the inference from Poole 's testimony that Miller,
playing on the sympathy of employees for their fellow employee and his family,
attempted and , in part. succeeded in obtaining from prospective witnesses false or
twisted statements . The court remanded the case to the Board for further proceed-
ings not inconsistent with its opinion The court has not ruled on the merits of
the case.
On March 13, 1962 , the Board issued an order reopening the record in Capitol
Fish Company , and directing that further hearing be held before a Trial Examiner for
the flaking of Miller's testimony consistent with the remand of the court It re-
manded the case to the Regional Director of the Tenth Region at Atlanta . Georgia,
to arrange for the hearing , and authorized him to issue a notice of hearing
On March 29 , 1962, the Regional Director issued a notice of hearing giving notice
that the hearing pursuant to the remand of the court and the Order of the Board
would be held at Atlanta , Georgia, on May 15, 1962 The Regional Director by
order subsequently rescheduled the hearing to May 31 , 1962 On May 31, 1962,
the hearing was held before Trial Examiner James F . Foley in Atlanta , Georgia.
The General Counsel of the Board and Respondent were represented. Theodore H.
Miller, the investigating attorney for the Board's General Counsel in the case, ap-
peared and gave testimony as a witness for Respondent . All parties were afforded
1 The hearing was held on May 13 , 14, and 15, 1959
'Miller was also of counsel for the General Counsel at the hearing
CAPITOL FISH COMPANY 839
an opportunity to present evidence, to examine or cross-examine Miller, and to
argue the evidence and submit briefs. Counsel for Respondent and General Counsel
waived oral argument and filed briefs after the close of the hearing.3
FINDINGS AND CONCLUSIONS
1. BACKGROUND
At the hearing on May 31, 1962 , pursuant to the remand , Respondent 's counsel
moved for the production by General Counsel of the statements of the witnesses
who testified for the General Counsel at the hearing on May 13, 14 , and 15, 1959.
The motion was granted, and counsel for General Counsel furnished to Respondent's
counsel the statements of Bennie Hill, Willie C. Davis, Archie Bell, James H. Mc-
Donald, Rosezell Johnson, Edward Blackshear , and Abe Winston. No statement
was furnished for Clarence Harrington as the General Counsel did not take a state-
ment from him. Respondent's counsel did not request the statement of Porter
Baldwin, Jr. The complaint in the proceeding had been dismissed against Respond-
ent insofar as it alleged Baldwin's discriminatory discharge by Respondent. For
the remainder of the hearing , Respondent 's counsel interrogated Miller, and General
Counsel cross-examined him . No other testimony was offered either by Respondent
or General Counsel. Respondent 's questioning of Miller included, in addition to
questions dealing with Miller's efforts to obtain a statement from Poole, questions
relating to the statements of some of General Counsel 's witnesses in the earlier
hearing. Their statements , as previously stated , were furnished to Respondent at
the outset of the hearing by the General Counsel . The statements were offered in
evidence by General Counsel after the examination of Miller. I received them in
evidence over Respondent 's counsel's objection, pursuant to the Board's decision in
J. G. Braun Company , 126 NLRB 368, 369, footnote 3. The statements of Hill,
Bell, McDonald , Blackshear , and Winston , as well as the statement of Porter Bald-
win, Jr., had also been furnished to Respondent 's counsel at the outset of the cross-
examination of each of these witnesses at the May 1959 hearing, had been available
to Respondent 's counsel during the cross-examination , had been read by Respond-
ent's counsel prior to their cross-examining , and in some instances were resorted to
during the course of cross-examination Respondent 's counsel did not request the
statements of Davis and Json at the May 1959 hearing, although they were
available to Respondent Zrfocross-examination . Respondent 's counsel requested
a statement for Harrington , but, as previously stated, counsel for General Counsel
had not taken a statement from him At the May 1959 hearing, Respondent's
counsel were free to cross -examine on matter in the statements even though not
contradictory of or inconsistent with the direct tesiimo ,,y of the witness Ra-Rich
Manufacturing Corporat'an , 121 NLRB 700; Tidelands Marine Service, Inc., 126
NLRB 261, 263-264
At the commencement of the May 31, 1962 hearing, I granted Respondent's
counsel's motion for leave to ask Miller leading questions . Miller did not give any
30n June 28, 1962, Respondent by counsel filed with the Trial Examiner a motion to
disqualify himself by withdrawing from the case hefore filing his Supplemental Inter-
mediate Report because in his Intermediate Report of November 3, 1959, he ignored the
testimony of Respondent's witness Poole relating to the investigation of the case con-
ducted by the Board's investigating attorney, mud in the hearing on May 31, 19112, lie
"repeatedly showed his bias against the Respondent and in favor of the Board " The
motion is hereby denied Poole's testimony is duly and appropriately considered and
evaluated The major part of the Trial Examiner's participation in the May 1962 hear-
ing was in ruling on motions and objections, In giving reasons for such rulings, and in
colloquy with Respondent's counsel sober The colloquy dealt with what the Trial
Examiner considered to be the inclusion in Gober's questions of conclusionary matter not
supported by the record, and questioning the witness unduly regarding his not offering
evidence at the May 1959 hearing which is not and was not admissible under the inles
of evidence, and under court and Board decisions The Trial Examiner's questions that
were directed to the witness were few, supplemented the questions of Respondent's counsel,
and were intended to elicit the testimony Respondent's counsel were seeking. Sec Board's
Rules and Regulations, Series 8, as amended, Section 102 35 , 58 Am. Jur. Witnesses
(1956 reprint), Sees 554, 555, 557, 566, 664 ; Continental Box Company, Inc v N L R B ,
113 F 2d 93, 96 (C A 5) ; N L R B. v C d J. Camp, Inc , et at d/b/a Kibler-Camp
Phosphate Enterprise, 216 F 2d 113, 116 (C A 5) , N L R B v. Bryan Manufacturing
Compasin, 196 F 2d 477, 478 (CA 7) ; and Beeaer v US., 255 U.S 22, 43 Also see
Pennwoven, Inc, 94 NLRB 175, 177-178, and American Life and Accident Insurance
Company of Kentucky, 123 NLRB 529, 530, 531
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence of hostility at that stage of the hearing or during the hearing. He was,
however, a technically hostile witness to Respondent, in view of Poole's testimony,
and I was of the opinion that permitting Respondent's counsel wide latitude in
questioning, consistent with fair treatment of the witness, would best serve the
objectives Of the remand.
H. TESTIMONY OF RESPONDENT'S WITNESS POOLE AT THE MAY 1959 HEARING
To be able to evaluate the testimony of Miller and other relevant testimony in
order to reach a determination whether in light of Poole's testimony the evidence
on which 1 ,relied in finding Respondent in violation of the Act was twisted or dis-
torted, I consider it necessary to set out the testimony of Poole at the May 1959
hearing.
On direct examination by Respondent's counsel in the May 1959 hearing, Robert
Poole testified that he had left Respondent's employment 3 weeks before the hearing,
after having worked for that Company since June 1958. He left to take a better
paying job. He testified that he first met Miller in Respondent's lobby in February
1959 4 about 7:30 in the evening. Later that evening he saw Miller again. Miller
was in his automobile and with him was Bennie Hill, one of the two former em-
ployees who had filed the unfair labor practice charges against Respondent Accord-
ing to Poole, Miller offered him and Harvey Wortham and Joe Reed, two other em-
ployees, a ride. They got in the car and Miller drove them to the front of Wortham's
house, about three blocks from Respondent's plant. Miller questioned Poole at this
place in the presence of Hill, Wortham, and Reed. Miller said to Poole he would
like him to help Hill, and he replied that he would like to help him but whether he
did depended on what kind of help he could give him. Then Miller asked Poole if
he ever heard Julius and Jacob Levitt say anything about the union or talk against
the union, and Poole answered no. Miller asked him if they ever said anything to
him about the union and he said no. Miller then asked if he attended the speech,5
and he asked him "would I be willing to sign, make a statement and sign the papers
to help Bennie." Poole then testified that he answered
I told him no, because I didn't want to get involved in whatever was going on
because it didn't make sense to me and he was saying to me about this man
being out of work and had a family, and I told him I had a family myself and
I didn't see any reason why-there was nothing I could do to get involved in
helping Bennie.
He said I could help like that, make a statement and sign some papers.
Poole then testified that someone telephoned his house the evening of the day he
left Respondent's employ 6 and asked for him but he was not at home. His wife
answered the telephone, and she asked the caller who he was, and he replied that
Poole would remember him.7 In the same week Miller again called Poole's home in
the evening and received permission from Poole to call at his home. Miller said he
would be there at 8 o'clock and appeared at that time Poole testified:
He asked me to-he said, "They did give you some money didn't they?" And
I told him "No " They hadn't given me any money. That I didn't want to be
bothered with anything and he said "Well, I see you ain't gonna be no help to
me," and he had gotten out of the chair and he says, "I see you ain't gonna
be no help to me," and he went out the door. He said he didn't see any use in
suspending 8 me into Court and I said that is all right
4 The unfair labor practice charges initiating the proceeding were filed with the Board
on January 9 and February 4, 1959, by Bennie Hill and Porter Baldwin, Jr . respectively
6 Julius Levitt, president of Respondent, made two speeches 1 or 2 weeks before the
election The election was held on September 26 and 29 and October 3, 1958 Poole's
testimony does not show whether he answered Miller's inquiry about the speech
4 This was in the latter part of April 1959, approximately 3 months after the February
interview
4 Miller's testimony Indicates he made the call.
8Poole's testimony on cross-examination by General Counsel shows clearly that he
was referring to the term "subpoenaing " He testified that to him "suspending" meant
"be called in, be sent these papers and be called in to Court " Poole had been
served with a subpena ad testtficandum by the Regional Director at the request of Re-
spondent. He had the subpena with him and referred to it as a "suspended" during
cross-examination. Poole's testimony contains no statement indicating that Bennie Hill
was present at the second interview The conversation and events as testified to by Poole
indicate he was not present.
CAPITOL FISH COMPANY 841
At this point in Poole 's testimony on direct examination , Mr. Gregory , counsel for
Respondent, asked Poole the question: "Robert, did Mr. Miller ever ask you to sign
a statement or give you a statement to sign?" Poole replied : "He handed me a
paper with a name and address on it, as much as I can see and told me to sign it and
I told him I wasn't gonna sign anything and he taken the paper and put it up on the
sunblind in the automobile." 9 Poole then continued: "He said, `Well, make up
your mind,' and I said, `My mind is already made up,' so he started to talk to Harvey
Wortham." 10
On cross-examination, Poole testified that Miller asked him at the meeting in
February 1959 if he was afraid to give a statement and Bennie Hill, who was present,
said that was why he refused to give a statement. Poole testified he denied to them
he was afraid. He denied at the hearing that he had been afraid to give a statement.
III. TESTIMONY OF GENERAL COUNSEL'S WITNESS JAMES H. MC DONALD AT THE
MAY 1939 HEARING
The Fifth Circuit in its opinion (294 F. 2d 868, 871) also stated that General
Counsel's witness James H. McDonald was "positive" on direct examination that Vice
President Jacob Levitt had had no conversation with him about who were the union
leaders, and that "He had to be shown his pre-trial affidavit before he could remember
that he had made the written statement that Levitt had discussed the subject of union
leaders with him and had attempted to find out their names." To the court, this
sequence in the testimony of McDonald could disclose the obtaining by Miller of
false or twisted statements from prospective witnesses, which thereby resulted in the
giving of false testimony against Respondent at the hearing.
The transcript of testimony, page 112, shows that Miller asked McDonald if he
had a conversation with Jacob Levitt about the Teamsters Union. McDonald an-
swered no. After further questioning by Miller to refresh his recollection, McDonald
was asked if he had exhausted his recollection, and he answered in the affirmative.
Miller then showed him an affidavit of four pages. McDonald said the signature
and the initials on the statement were his. A deletion on the first page was initialed
as were the end of first and second pages of four pages. He had signed it at the
end of the fourth page. Miller asked him if he recalled making a statement which
he read from the affidavit. The part of the affidavit Miller read, which is recorded
in the official transcript at page 115, is:
Jacob Levitt said one day to me, "you know who the leaders of the Teamsters
are" and I said "I don't know who they are." He then said, "I know who two
or three of the leaders are." He didn't mention any names. He said after the
first of the year there [he] is going to be [make] some changes. This happened
on a Friday afternoon before Christmas. I was merely visiting and not working
there that day.ii
9 Poole, Indicated on cross-examination a piece of paper the size of 8 by 11 inches as
the size paper extended to him by Miller and which Miller put above the sun visor He
testified on cross-examination that he had given Miller his name and address, and that
Miller had written them on this piece of paper
lU The Fifth Circuit had the understanding in drafting its opinion (294 F 2d 868, 871)
that Poole testified that Miller handed him the legal-size paper with Poole' s name and
address on it, and asked him to sign it, at the second interview, which was held at
Poole's home just 3 weeks before the hearing, approximately 3 months after the first
interview of February 1959 However, the official transcript of testimony, page 419-D,
does not support this understanding It is clear from the record that Poole was re-
ferring to the first interview of February 1959, concerning which he had just testified
that "he asked me to-would I be willing to sign, make a statement and sign the papers
to help Bennie." He had also testified regarding this incident in the first interview that
he did not want to give a statement and sign It because lie wished to avoid getting in-
volved as It did not make sense to him, and that he told Miller when the latter said
Bennie was out of work and had a family, that he had a family himself and there was
nothing he could do to get involved in "helping Bennie " The Trial Examiner has noth-
ing before him on which to premise an explanation as to how the court reached this
misunderstanding In regard to the second interview in April 1959, Poole, prior to
Attorney Gregory's 'last question, had stated that this interview had ended by Miller say-
ing that Poole was not going to do him any good, that there was no use in subpenaing
him to appear in court, and by Miller thereupon getting out of the chair he was sitting
in and going out the door.
li In McDonald's affidavit, the words in brackets were used instead of the words immedi-
ately preceding them.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonald recalled making the statement read to him by Miller. He testified that
Jacob Levitt said he was going to make some changes , but that he did not say what
the nature of the changes were. Miller at this point asked him if he recalled Levitt
asking him who the leaders of the Teamsters were. He replied , "I recollect him
asking me but I didn 't know at all, and I still don't know till yet." McDonald was
cross-examined on his affidavit by Respondent 's Attorney Gregory. Gregory had
McDonald identify the statement . He testified that the signature on it was his sig-
nature, that Miller, the General Counsel's investigating attorney , took the statement
,by questioning him and writing down the answers , and that Miller read the statement
to him, and that he himself , did not read it at all He also testified that Miller came
to his house to take the statement , that Bennie Hill was with Miller , and was present
when he gave the statement to Miller. In response to Counsel Gregory's question,
"Did Bennie Hill have anything to say? " McDonald answered that "Bennie Hill did
not have anything to say whatsoever ." McDonald stated on cross-examination that
he was not sure of the date that he had the conversation with Jacob Levitt , that it
could have been in the year 1958 or 1959, that it was one of those 2 years
Gregory stated to McDonald that he believed he said in his affidavit that Jacob
Levitt said that after the first of the year he was going to make some changes, and
asked McDonald if he remembered it. McDonald answered , "Yes, sir, he was
discussing with me about providing equipment and stuff like that . Now what it
was for he gave no reasons . He didn 't discuss nothing with me about it." Gregory
also asked him if Levitt asked him the names of any union leaders, and he said no,
and then Gregory asked him if he asked any questions about the Union, and
McDonald answered that, "He asked me if I knew who they were and I told him
no, sir, I did not know and up to yet I still do not know."
Vice President Jacob Levitt , on direct examination by Attorney Gregory, recalled
a conversation he had with McDonald about the "union ." He said it was a few
days after Respondent received the notice that "they petitioned us." 12 He said he
listened to McDonald who was trying to "curry" favor with him, but denied he said
anything in the conversation.
McDonald and Jacob Levitt testified that McDonald was not working for Re-
spondent at the time of the conversation , that he had been seeking work from
Respondent for the 1 day he was not working elsewhere . McDonald testified he
secured 1-day-a-week employment from Respondent shortly thereafter , and worked
for Respondent up to 6 weeks before the hearing in May 1959 His regular em-
ployment was with Associated Grocers. He was a member of Teamsters while
employed there.
In my Intermediate Report, I found that Jacob Levitt , in a conversation with
employee McDonald a few days after the Retail Clerks had requested Respondent
to recognize it, asked McDonald who the leaders of the Retail Clerk, were. This
date and the union involved were based on Levitt 's testimony that the date was
shortly after the union petitioned us. It was my understanding that Levitt was
referring to the first request for recognition which was on September 2, 1958. This
was made by the Retail Clerks. From a reconsideration of Levitt 's testimony and
McDonald's testimony , I now conclude that Levitt referred to the date of a con-
versation he had with McDonald about the Teamsters when he said it was when the
union petitioned Respondent . He was referring to the date of September 19, 1959,
when the Teamsters petitioned for recognition Therefore, McDonald was referring
to the Teamsters and not the Retail Clerks , when he testified that Levitt asked him
who the leaders of the union were. Since I found in my Intermediate Report that
I did not credit any of McDonald 's testimony about the Teamsters that followed
his recollection being refreshed by reference to his statement , I vacate and set aside
the finding in my Intermediate Report that McDonald had a conversation with
Jacob Levitt a few days after September 2, in which Levitt asked him who the
leaders of the Retail Clerks were . The withdrawal of this finding is not a reflection
in any way on Miller's conduct in securing McDonald's statement As a result of
the review of the testimony , and the circumstances attendant on its being offered by
General Counsel , as well as a review of McDonald's statement , and the circum-
stances in which McDonald gave it to Miller , I am persuaded that the testimony
was competent. But to find a violation premised on this conversation would he
contrary to my finding that I did not premise any violation on testimony elicited
from McDonald following his recollection being refreshed by reference to his
statement
'=The Retail Clerks petitioned for certification as bargaining representative on fientem-
ber 'i, 195S, and the Teamsters petitioned for certification as bargaining representative
on September 19, 1958
CAPITOL FISH COMPANY 8^.3
IV. TESTIMONY OF GENERAL COUNSEL'S WITNESS EDWARD BLACKSHEAR AT THE
MAY 1959 HEARING
The Fifth Circuit in its opinion (294 F. 2d 868, 871), also considered as evidence
that Miller, the investigating attorney, may have secured false or twisted statements
from prospective witnesses, the testimony of a witness "who could read only 'a little
bit' and had to have the investigating attorney, in his capacity as trial attorney, read
the witness' pretrial statement to him before he could recall what Mr. Julius Levitt
had said about the unions; even then he testified that he was `not sure.' " This
witness was General Counsel's witness Edward Blackshear. Miller, the investigating
attorney, who was also of trial counsel for the General Counsel, read to Blackshear,
General Counsel's witness, the portion of his statement or affidavit relating to a
conversation he had with President Julius Levitt. Blackshear had been unable to
recall all of the conversation with President Levitt as recorded in his statement.
Miller read to him from the statement after he said, as the court stated, that he
could read only "a little bit." He asked Miller to read it to him. Upon reading it,
Miller asked Blackshear if he recalled it. He said, "I think so-some of it-I don't
know." When Miller asked again for his answer, he replied, "I think so, I am not
sure " The Trial Examiner made no finding whatsoever of a conversation between
Blackshear and President Julius Levitt. The Trial Examiner's finding of a con-
versation Blackshear had with an official of Respondent regarding union activity
was a conversation he had with Vice President Jacob Levitt.
On direct examination, Blackshear had identified the signature and initials on the
statement as his. He did the same on cross-examination. On cross-examination, he
stated that the statement was taken in the summer but he did not recall the month.
In response to Respondent's Attorney Gregory's questions whether he had paid any
attention to what was said in it, he answered, "Yes, sir, me and him sit right together
when he was writing it." To Mr. Gregory's question "You can't read though can
your" he answered, "No, sir, my wife she was there and anything I wanted to know
I asked her." Blackshear also testified on cross-examination that Miller read the
statement to him at his house when Miller took it, that at that time Miller asked
him if he could read and he said he could not.
As previously stated, Blackshear testified on direct examination prior to being
shown the statement, that the conversation had taken place. He was asked by
Miller if he had worked on February 1, 1959, and he answered "yes." Miller asked
him if he remembered the day of the week it was, and he answered he believed it
was on a Sunday.13 He answered yes to Miller's question if he had had a conversa-
tion with President Levitt that morning, and he then testified what President Levitt
said in the conversation. According to Blackshear, "He just said Bennie wanted
to come back and he wasn't coming back." When he did not state the complete
conversation as recorded in the statement,14 Miller asked him questions to refresh his
recollection and when he could not recall anything further being said, Miller read
to him the portion of the statement dealing with the part of the conversation that
Blackshear could not recall. This was: "Damn before I let the union come in I'll
let them walk the streets." As previously stated it was then that Blackshear answered
Miller's question if he recalled it, by saying, "I think so-some of it-I don't
know," and "I think so, I am not sure."
On cross-examination, he stated the conversation took place after the election.
He answered "No" to Mr. Gregory's question, "Buckwheat, did anybody ask you if
you would help out Bennie to get his job back." He denied that Bennie Hill came
to see him or talked to him any place about being fired, or that he had seen Hill
since he was discharged except on the day of the hearing He again testified that
he was not sure that he recalled the part of the statement which was read to him by
Miller on direct examination Blackshear was employed by Respondent when he
testified. Julius Levitt, in his direct testimony for Respondent, like Blackshear,
recalled the conversation and that it took place on February 1, 1959. He gave
somewhat the same version of the conversation as related by Blackshear. He denied
saying what was read to Blackshear by Miller from Blackshear's statement.
V. THE TESTIMONY OF ABE WINSTON, GENERAL COUNSEL'S WITNESS, AT THE
MAY 1959 HEARING
Although counsel for the General Counsel made no reference to witness Winston's
statement in examining him, Respondent's counsel Gregory cross-examined him on
it This testimony is relevant to an inquiry dealing with Miller's conduct of the
13 February 1, 1959, was on a Sunday
14 The statement was taken and signed on February 28, 1959
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation. Winston testified on direct examination that Julius Levitt asked him
if he attended union meetings and if he was for the union. He answered that he
did attend union meetings. He also answered that he was not for the union because
he was afraid Levitt would fire him. He repeated this testimony on cross-
examination.15 Winston's statement contained this testimony. It also contained
the statement that the union told him not to tell the boss he was for the union as he
could get fired for doing so. On cross-examination, Winston testified that he did
not read his statement at the time Miller took it down, but that Miller read it to
him. He also testified on cross-examination that Miller did not read to him the
part of the statement that the union told him not to tell the boss he was for the
union as his doing so could get him fired. He said that he did not tell this to Miller.is
VI. MILLER'S TESTIMONY AT THE MAY 19112 HEARING
Miller gave the following testimony at the May 1962 hearing as Respondent's
witness:
The investigation by Miller was conducted over a period of 60 days. He obtained
his leads or names of witnesses from Bennie Hill, the Charging Party, which was
the normal procedure. He did not remember the specific interviews on which Bennie
Hill accompanied him. Bennie Hill accompanied him on the majority of the inter-
views. On all the initial contacts, when he went out to see witnesses that Hill had
provided, Hill was present to show him where the houses were. In some instances,
Hill accompanied him when he revisited a prospective witness In response to ques-
tioning by counsel for the General Counsel, Miller explained this by pointing out
that he was not well acquainted with the Atlanta area and did not know the wit-
nesses by sight or their home addresses. He was assigned to the Board's Regional
Office in Atlanta in September 1958. He was in Atlanta only a few months when
assigned to investigate the unfair labor practice charges filed by Bennie Hill 17 He
answered "no" to Attorney Gregory's question whether he sought assistance from
any representative of management in locating the prospective witnesses or their
addresses
When Miller and Hill arrived at the house of a witness, Hill accompanied Miller
into the house. He would identify Miller, state who he was, what he was doing,
whom he represented, and things of that nature Hill remained during the interview.
Miller did not recall Hill asking a question while he was interviewing a witness. In
response to questioning by the Trial Examiner, Miller testified that he wished to
conduct his own investigation, ask his own questions "as to what went on, what dates
and what time," and if in the course of any investigation he conducted, anyone inter-
rupted him by asking a question which pertained to the investigation, he would
instruct him not to interrupt while he was conducting the investigation. After Miller
took the statement, Hill "might" have chatted with the prospective witnesses about
their families, or social activities or said goodbv. Miller could not recall that in his
presence, Hill said to witnesses during the investigation that giving a statement might
help him get his job back, or that he had a wife and children to support, but that he
may have made such statements. Miller did not ask the witnesses to help Bennie Hill
because Hill had a large family and needed their support, or suggest what answers
were to be given. In regard to his first interview of Robert Poole, he did not
recall asking Poole to sign an 8 by 11 sheet of paper or putting the paper over the
sun visor.18 Miller did not recall asking Poole to help out Hill, or he or Hill making
a reference to Hill being out of work and having a family When asked by Attorney
Gregory if he denied asking Poole to help out Bennie Hill, Miller replied that he
16 The Trial Examiner credited what he said to Julius Levitt, but not his reason why
he said it
19 McDonald and Blackshear were the only witnesses whose recollections were refreshed
on direct examination by the statements given to Miller in the course of his investigation
of the case. Hill's statement, dated January 9, 1959, was not taken by Miller, but by
Elliot Moore, Jr., another attorney on the General Counsel's staff stationed at the time
in Atlanta, Georgia On cross-examination by Respondent's Attorney Gregory, Porter
Baldwin answered that when Miller took his statement Bennie Hill showed Miller where
he lived, introduced Miller to him, and was present during the inteiview, but did not
say anything
lv Miller was a practicing attorney in Wisconsin at the time of the hearing He left the
National Labor Relations Board in May 1961. He received a law degree from the
University of Wisconsin in 1955.
"He was asked if he recalled doing so He was not asked if he did it or if he denied
doing it
CAPITOL FISH COMPANY 845
had asked Poole to give a statement in "relationship" to what happened at Capitol
Fish, and that if that was helping Bennie Hill that was what he asked him to do.
Respondent's attorney asked Miller that if the first time he saw a witness, he
"didn't get the answer" he wanted, he went back and saw the witness again. Miller
replied "absolutely not." He also asked him, "In other words you would not take
no for an answer, is that correct?" and Miller replied, "That's not correct." He testi-
fied in response to Gregory's question that after a witness had declined to give a
statement he did not go back. On cross-examination by General Counsel, Miller
stated that he had various reasons for going back to see a witness, namely, if the
witness was not at home when he had made a prior call, if the witness was reluctant
to give a statement the first time, if there was a reason in Mr. Miller's mind to go
back, if the witness told him to come back, if he had information that a witness
had left Capitol Fish Company or he had been discharged, or that something had
happened to change his mind "and to prevail on him to come forward with the truth
of the matter." Miller was asked by Attorney Gober how many times he went to
see General Counsel's witness Willie C. Davis He replied that he did not recall.
When Gober also asked him if it were not true he did not recall how many times
he went to see any of General Counsel's witnesses, Miller replied: "I know there are
a few of them that I went to see more than once because they weren't at home the
first time or something of that nature. I don't recall if I went to Willie C. Davis'
house two times or three or maybe one time. I just don't know; I don't recall."
Miller saw Porter Baldwin, Jr., numerous times. He went to Archie Bell's house
more than once. He could not remember whether he went to James McDonald's
house more than once. He did not recall General Counsel's witness Edward Black-
shear, his interviewing him, or how many times he interviewed him. He recalled
telephoning Robert Poole once, agreed that he could have called twice, and recalled
going to his house after the second call, and asking for a statement. Poole had
refused to give him one at the first interview 3 months before He did not recall
whether he obtained statements from Joe Reed and Harvey Wortham, who were
with Poole when he first interviewed him, or whether he went to their homes later
again seeking statements from them.
When Mr Miller went to interview a prospective witness he had affidavit forms
with him which already had some stenciled or mimeographed matter on them with
blanks to be filled in with information furnished by the witness. The stenciled or
mimeographed material along with the information he obtained from the witness
constituted a part of the affidavit. Absent the information furnished by the witness,
the stenciled or mimeographed material was meaningless. It is possible that before
going out on an investigation Miller put the name of a person whom he intended
to interview on the form, but he did not recall doing it. Mr. Miller wrote all of
the statements himself Miller asked each prospective witness questions and wrote
each answer in the statement when it was given He testified that if some of the
questions had been answered in the affirmative, it would have been a violation of the
Act in the eyes of the Board or of a Trial Examiner. He may have asked the
witness whether they had been under surveillance and did ask whether the employer
had made any threats against the union, and whether the employer had said anything
about money benefits if they did not vote for the union. He was sure that he told
Porter Baldwin, Jr , that he thought there was some violation of the Taft-Hartley Act
in the statement Baldwin gave him, what the remedies would be if there was a
violation, one of them being his job back if the violation was proven. He also told
Baldwin how to get backpay under the Act. Miller denied he told Rosezell Johnson
that he would help him get his job back, but testified he told Johnson he thought there
was some violation of the Act in the statement he gave him, and also told him of the
remedies of reinstatement and backpay if the violations were proven. Miller stated
that he did have something to do with the filing of the charge by Johnson in that
he took Johnson's statement. He did not recall what he said to Johnson and Baldwin
about filing charges. In response to the Trial Examiner's question whether he could
have said something like, "If I were you, I would file a charge," he answered he
could have said it, but did not recall doing so.
Miller testified that after he had written a statement he either read it out loud or
had the witness read it, depending on the witness' degree of literacy. If the witness
claimed he could not read or if he did not understand English or could not read
English, Miller read it to him. His normal procedure was that if he handed an
individual an affidavit and the individual handed it right back, Miller would have
asked him "Can you read?" If a witness spent a long time, 10 or 15 minutes or 5
or 7 minutes digesting a statement or looking like he was reading it, Miller would
net lave asked him if he could read it. However, Miller did not recall whether
Jams McDonald read his statement over before he signed it or whether Miller
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
read it to him. James McDonald was the witness who testified at the May 1959
hearing contrary to his pretrial statement until Miller read the statement to him.
Miller could not recall whether he asked Edward Blackshear if he could read or
whether he knew that Blackshear could not read at the time of the previous hearing.
Miller had handed this witness his pre.rial statement at the May 1959 hearing,
and, upon discovering that the witness could not read it, was permitted to read part
of his statement relating to a conversation between him and President Julius Levitt.
The witness thought he recalled some of it, but was not sure 19
Respondent's attorney, Gober, questioned Miller at length in regard to Rosezell
Johnson's statement and the questions he asked Johnson at the May 1959 hearing
Johnson testified for the General Counsel. Gober was obviously of the opinion that
Miller had been deliberately dishonest in his questioning of Johnson in view of
Johnson's statement 20
On February 4, 1959, Miller took Johnson's statement. Miller testified that he
very likely took the statement down on a portable typewriter His recollection was
that he took it at Johnson's home. According to paragraph 4 of the statement,
Johnson was hired on October 1, 1958 In paragraph 8 of the statement it is stated
that Harvey L Anglin, the warehouse superintendent, and Johnson's supervisor,
told him one day in late October or early November 1958, that he was going to have
to let him go, that in response to Johnson asking him what the trouble was, Anglin
answered, "You know what is going on here about the Union." Johnson then an-
swered that he was not for the union, that he was not employed by Respondent when
it started. Anglin told Johnson to see the boss. According to paragraph 9 of the
statement, Johnson saw Vice President Jacob Levitt in the warehouse, and he told
Johnson that Respondent was not making any money, that it was going to have to put
one of the older employees on Johnson's truck route, that they were trying to organize
the routes better. Levitt then said that Respondent did not have anything Johnson
asked Levitt if he could use any extra help, and Levitt replied that he could come in
from time to time and that Respondent may be in need of extra help According to
paragraph 10 of the statement, the first week Johnson was at work he heard Vice
President Jacob Levitt say on the loading dock that he would fire every man "who was
for the Union," that he had "a way of finding out " According to paragraph 12 of
the statement, Johnson was a member of the Teamster Union at Associated Grocery
where he was employed prior to employment by Respondent, that he was discharged
by that employer for union reasons, and came directly to Respondent, and that later
Respondent was aware of the reasons for his discharge
As previously stated, Miller testified that on February 4 1959, when he took the
statement, he may have told Johnson that he thought there were violations of the
Act contained in the statement if they were proven, and apprised him of his rights
under the Act, and the remedies of reinstatement and backpay under the Act, and
may have said to Johnson he ought to file a charge 21 Johnson filed an unfair labor
practice charge with the Board's Regional Office in Atlanta, Georgia, on February 5,
1959.
The Regional Office gave notice to Respondent, including a copy of the charge.
Respondent's counsel, the same attorneys that are representing Respondent in these
proceedings, replied to the charge in a letter dated February 9, 1959, to the Regional
Office. In this letter Respondent apprised the Regional Office of its position, and
that Johnson began employment on the date of October 11, 1958 This date was
contrary to the date of first employment stated in the affidavit The date stated therein
was October 1, 1958. The Regional Director notified Respondent's counsel on
10 Blackshear testified on cross-examination at the May 1909 hearing th'it 1nllei lied
read the statement to him when Miller had taken it down, and had asked him if he could
read and he said he could not McDonald also testified on gross-exanunation at the
May 1959 hearing that Miller had read the statement to him at the time he gave it to
Miller
20 At the May 1959 hearing, Respondent's attorney did not request Johnson's statement
for purposes of cross-examination although it was available for that purpose
21 Miller testified that he may have said the same to Porter Baldwin. another of Genernc
Counsel's witnesses and a Charging Party Baldwin's affidavit is not In evidence it was
not requested by counsel for Respondent at the outset of the May 1902 he firing Ilow-
ever, Baldwin was cross-examined on his statement at the May 1959 hearing The Trial
Examiner recommended the dismissal of the complaint insofar as it alleged the discrimina-
tory discharge of Baldwin, and the Board adopted the recommendation The Board
adopted the Trial Examiner's recommendation of it violation of Section 8(a) (1) of the
Act by Respondent on Baldwin's testimony. General Counsel did not refer Baldwin's state-
inent to Baldwin during his first examination.
CAPITOL FISH COMPANY 87
March 12, 1959, that he had approved withdrawal of the charge by Johnson.
Miller solicited withdrawal of the charge, and recommended approval of the with-
drawal to the Regional Director on March 12, 1959.
Miller's reasons for the recommendation were:
Charging Party had been employed by Capitol Fish Company from October 11,
1958, to November 22, 1958. Mr. Johnson was terminated because of ineffi-
ciency and a part of the general economic drive. The evidence shows no
discrimination towards the Charging Party by his Employer due to his union
or concerted activities.
,In examining Johnson on direct examination at the May 1959 hearing, Miller asked
him when he was first employed and he answered that it was "sometime before
Christmas of this past year," and asked him if it could have been in October, and he
replied that it could well have been. During the direct examination, Miller asked
Johnson the question:
During the first week of your employment at Capitol Fish will you state
whether or not you had any unusual conversations with Jacob Levitt?
Johnson replied:
No, sir. I didn't have any unusual conversations but there were just a rumor
going on about union. Union meetings and trying to get in the union and out on
the dock where we was loading Mr. Jacob Levitt said that he would get everyone
that was in the union and that was trying to get the union and that they was
using his trucks to go to the meetings. Of course it didn't concern me "cause I
wasn't there when the union-when it started."
,On cross-examination, Respondent's attorney Gregory asked Johnson if he could
have begun his employment with Respondent on October 11 or that week, and John-
son replied that it could have been. He questioned Johnson about the incident in-
volving Jacob Levitt, and Johnson answered, as follows:
GREGORY: Now this time he was out on the dock as I understand it, he said he
was going to get those employees who were using his trucks to go to union
meetings, is that right?
JOHNSON: To go to union meetings and who would follow the union.
GREGORY: Those that were using the company trucks,,is that right?
JOHNSON: Yes, sir.
MILLER: I don't believe that is what he testified.
GREGORY: That is what he is testifying to now.
TRIAL EXAMINER: Objection overruled.
GREGORY: That is all of this witness at this time.22
Respondent's attorney, Gober, took the position at the May 1962 hearing by his
questions to Miller and representations to the Trial Examiner that Miller acted in bad
faith when he asked Johnson the question on direct examination whether during the
first week of his employment he had had any unusual conversations, since he was
seeking an answer incorporating what Johnson said in paragraph 10 of his statement
which Miller knew was false. According to Gober, Miller had found from the
investigation of Johnson's unfair labor practice charge that Johnson had falsified his
first date of employment in paragraph 4 of his statement as October 1, when in fact it
was October 11, that the incident related in paragraph 10 of the statement, a remark
Jacob Levitt made in Johnson's presence, to be true had to have occurred prior to the
election, and Johnson's first date of employment was after the election.
At the time Johnson was interviewed by Miller on February 4, 1959, he had been
away from Respondent's employ since November 22, 1958, when he was terminated.
His first date of employment by Respondent, October 11, was 4 months prior to the
date of the interview. The election was held on September 26 and 29 and October 3,
1958. The Board's complaint included in paragraph 5 an allegation of violations of
Section 8(a)(1) of the Act by Vice President Jacob Levitt on October 15 and
December 2, 1958, which were dates after the election. The interest of the employees
in the Teamsters Union continued after the election. These is nothing in paragraph
10 of the statement that relates the incident therein to a date prior to the election.
In paragraph 10, Johnson associated the incident with the first week of his
employment
Johnson did not commit a falsehood by stating in paragraph 4 of his statement that
he was hired by Respondent on or about October 1, 1958. It was his best recollec-
tion at the time, considering that he had been working elsewhere since November 22,
'2 There was no redirect examination.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the date of the interview, February 4, 1959, was approximately 4 months from
the first day of his employment on October 11. He associated the incident in
paragraph 10 with the first week of employment, not with October 1, and there is.
nothing in his statement about the incident, which identifies it with a period prior
to the election. So I find nothing improper in Miller's reference to the first week of
employment in his question to Johnson. It was intended to elicit testimony dealing
with an incident involving Vice President Jacob Levitt. Respondent's counsel could
have questioned Johnson about the date on cross-examination. They did not elect to
do so. As previously stated they did not request counsel for the General Counsel to
produce Johnson's statement for use in their cross-examination of Johnson, although
they did request the statement of all of the other witnesses for General Counsel except
Willie Davis. I further find no merit in Attorney Gober's position that Miller should
have offered Johnson's statement in evidence when Johnson gave testimony other than
the matter contained in paragraph 10 of his statement. He could not have offered it
as affirmative evidence.23 He had the election to plead surprise and impeach John-
son by means of the statement and offer it in evidence for purposes of impeachment or
remain silent.24 In any event the Trial Examiner found that what Johnson testified
at the May 1959 hearing had been said by Jacob Levitt is not illegal conduct. So
Respondent was not prejudiced in any way by this testimony. Respondent's Attorneys
Gregory and Gober had the opportunity to request Johnson's statement for use in
cross-examination and to impeach Johnson's testimony by means of his statement.
They did not do so. As Respondent's Attorney Gregory stated on two occasions when
objecting to the use by counsel for the General Counsel of the witness' statement
to refresh his recollection, it often happens that a witness will say one thing in a
statement and testify differently at the hearing.25
Counsel for Respondent in contending that Miller channeled twisted testimony into
the record referred to the testimony of Archie Bell at the May 1959 hearing of a con-
versation he had with Julius Levitt. Miller asked at the hearing if he had a conversa-
tion with Levitt in September 1958. Bell's statement states that the conversation took
place after the election. The last day of the election was October 3, 1958. However,
Miller also asked Bell on direct examination if the conversation occurred before or
after the election, and Bell answered that it occurred before the election
Respondent's counsel Gregory cross-examined Bell on the difference in dates He
asked him if the conversation was before or after the election. He answered: "Well,
T believe it was ... I am not sure " Bell recalled giving Miller a statement around
the first of the year. The date was January 28, 1958. Attorney Gregory handed
Bell his statement and asked him to look at it, and then he asked him this question:
Would you say after refreshing your recollection from that statement that
that conversation to which you testified occurred before or after the election?
Bell answered:
I told Mr Miller when he took that statement that Mr - that I wasn't so
sure about the dates of nothing that happened because I couldn't keep up with
dates and I am not sure whether it was before or after.
Attorney Gregory then asked this question-
in other words you don't recall whether it was before or after the election
but at the time you gave this statement the events were a lot fresher in your
mind than they are now, is that correct9
Witness Bell did not answer.
Julius Levitt on direct examination as Respondent's witness, remembered Archie
Bell's testimony and remembered the incident involving him and Bell. He testified
that he did not ask Bell a question but stated that "the rumors around here is that
you are for the Teamsters and Bennie's for the Retail, Wholesale Union, why don't
21 V L R B v Quest-Shon Mark Brassiere Co, Inc, 185 F 2d 285 , 289 (C A 2), cert
denied 342 U S 812.
24 See also Sealtest Southern Dairies Division , National Dairy Products Corporation,
126 NLRB 1223, 1225
w The difference between a witness ' statement and his testimony can be attributed to a
number of reasons. The admissible evidence is the testimony under oath at the hearing.
U S. Fidelity & Guaranty Co. v. Commercial National Bank, 55 F. 2d 564, 566 (C A. 5).
The exception is a party 's statement inconsistent with his position It is an admission
against interest , and receivable as affirmative evidence. 4 Wigmore, Evidence, 3d ed
(1940 ), § 1048.
CAPITOL FISH COMPANY 849
you cut out your complaining." He testified further that he "didn't use the word
complaining." While he testified that Bell did not say another thing, Bell testified that
he answered Levitt by saying, "You know more than I do." Attorney Gregory who
questioned Levitt did not ask him the date of the conversation, although he ques-
tioned Bell at length about it.
It became common knowledge on September 26 and 29 and October 3, 1958, in
Respondent's plant that Hill was the union steward for the Teamsters, as he appeared
as an observer for the Teamsters at the Board election held on those dates. The
Retail Clerks had ceased organizational activity on or before September 22, 1958,
and withdrew in favor of the Teamsters at that time Hill had been the leader of
the Retail Clerks in the plant until that union withdrew on September 22, while Bell
was the leader of the Teamsters in the plant until the Retail Clerks withdrew. Hill
took over the leadership of the Teamsters from him. This occurred prior to the first
day of the election which was September 26. So the substance of the conversation
itself discloses that it occurred prior to September 26, 1958, and, therefore, in the
month of September. In finding that the conversation between Julius Levitt and
Archie Bell took place in September 1958, I took into consideration the independent
facts stated above as well as Bell's direct and cross-examination and Levitt's direct
examination Miller did not cross-examine Levitt on his conversation with Archie
Bell.
I cannot see how Miller's reference to September 1958, in his question to Bell
regarding the conversation he had with Levitt shows any dishonesty or bad motive
on Miller's part, or any disclosure of an attempt to channel distorted or twisted
testimony into the record It is true that Bell's statement carries the period "after
the election" as the time of the conversation, but Bell testified that he told Miller
when he gave him the statement that he was not sure of that date. Bell testified on
direct that the conversation took place before the election It can be assumed that
when Miller discussed Bell's testimony with him between the date of the statement
of January 28, 1958, and the date of May 13, 1959, when he testified, that the
date of the conversation was considered in light of Miller's investigation, of the case,
and the disclosure of the date of the conversation from the substance of the conver-
sation itself The admissible testimony was Bell's testimony under oath on the
witness stand on May 13, 1959.26 I gave the cross-examination of Bell and the
direct examination of Levitt by Respondent's counsel due consideration in making
my finding that on or about September 22, 1958, Julius Levitt asked Bell who the
leaders of the Retail Union and the Teamsters Union were.
VII. ANALYSIS AND CONCLUDING FINDINGS
From an analysis of my evidentiary findings I make the following conclusions
and findings of fact.
Robert Poole, an employee of Respondent in February 1959, met Miller, the
Board's investigating attorney, about 7.30 in an evening of that month in Respond-
ent's lobby. Later that evening, Miller, who was in his automobile at the time, offered
a ride to Poole, and Harvey Wortham and Joe Reed, two other employees of Re-
spondent, as they emerged from Respondent's plant after work Bennie Hill was
with Miller in the latter's automobile. Miller drove Poole, those with him, and Hill
to the front of Wortham's home, a few blocks away There Miller asked Poole in
Hill's presence and in the presence of the others to help Hill Poole replied that it
depended on what help he could give Hill. Miller asked him if he ever heard Julius
and Jack Levitt say anything about the union or talk against the union, and Poole
answered no. Miller then asked Poole if he attended the speeches that Julius Levitt
made regarding the union When Poole either answered this question, or remained
silent, Miller asked him if he would make a statement and sign it, that by doing
these things he would be helping Hill who was out of work and had a family Poole
replied that he would not give and sign a statement because he did not wish to ret
involved .in what was going on as it did ,not make sense to him and he had a family
himself Miller had the affidavit form in his hand when he was talking to Poole and
when Poole refused to give and sign a statement, Miller put the particular form on
which he had written Poole's name and address over the sun visor in front of the
driver's seat. Before doing this, Miller asked Poole if he was afraid to give a state-
ment and Hill interjected the words that that was what was the matter with Poole.
In the latter part of April 1959, shortly after Poole had left Respondent's employ
for a better job, Miller telephoned Poole's home and asked to talk to him. Poole
was not at home. His wife answered the telephone. She asked who the caller was,
s" See supra.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he answered that her husband would remember him It was Miller who tele-
phoned. Miller called again the same week, talked to Poole, and told him he would
come to his house about 8 p.m. Miller appeared at Poole's house at that time.
Hill was not with him. Miller asked Poole if he would give a statement and sign it,
and he answered no. Miller asked him if Respondent gave him some money, and
Poole answered no. Poole also said he did not want to be bothered about anything
regarding Hill's discharge and the Board proceeding. Miller rose from the chair in
which he had been sitting, saying at the same time that he could see that Poole was
not going to help, and that there would be no purpose in his subpenaing him to
appear in court and testify. Poole said that was all right. Miller then went out
the door and left.
I find from consideration of Poole's testimony, the testimony of Miller, and the
other testimony discussed in this Intermediate Report, that neither at the first inter-
view in Ferbruary 1959 nor at the second interview about 3 months later, did Miller
ask Poole to sign an affidavit form in blank, or to sign an affidavit form containing
statements supporting the unfair labor practice charge he was investigating. Poole's
testimony does not support such a position either directly or inferentially. A pre-
sumption of administrative regularity attaches to the conduct of a public official and
the testimony of Poole, with or without the testimony of Miller and the other testi-
mony fails to rebut this presumption.27 It is apparent from Poole's and Miller's
testimony that Miller and Bennie Hill, a Charging Party, believed that Poole knew
something about Hill's discharge or the attitude of the Levitts regarding the union
activity in Respondent's plant, that was material to the case. Miller's fault, if any,
was in his persistent attempts to find out what Poole knew, if anything, about the
case.
Miller was looking for the evidence in the case. He followed the technique of
interviewing Poole and other persons whom he considered prospective witnesses. He
relied on Bennie Hill, a Charging Party, for the names of prospective witnesses.
Miller took down what they told him about the case on the affidavit forms he brought
with him, read the statements to the persons interviewed, or had them read them,
and had them sign them under oath if they were satisfied that they were their state-
irients as recorded by Miller. As shown by his conduct in the disposition of the
unfair labor practice charge filed by Rosezell Johnson, Miller then evaluated the
evidence he gathered by way of affidavits and other means, and depending on his
evaluation, recommended the withdrawal of the charge, its dismissal by the Regional
Director or the issuance of a Board complaint.28 In the case of Poole, he got no
farther than asking him to give a statement and sign it. He contacted Poole a
aecond time when he learned that Poole had left Respondent's employ, thinking that
Poole might disclose evidence about the case since he was no longer an employee
of Respondent. I do not attempt to suggest any standards to be employed by Board
investigating attorneys in investigating unfair labor practice cases. I have merely
under my scrutiny at the moment what Miller's efforts were with respect to his
attempt to secure a statement from Poole and the other prospective witnesses.
Miller's efforts, and what assistance he received from Hill, were directed at obtaining
Poole's consent to give a statement. I do not consider Miller's testimony, and the
other evidence, considered with or apart from Poole's testimony, to disclose in ,any
way that he sought to obtain Poole's sienature on a blank affidavit form that he
could fill in with statements supporting Hill's unfair labor practice charges or on an
affidavit form on which Miller had written unfounded statements supporting the
charge. The reference to Hill being out of work and having a family was induce-
ment to obtain Poole's agreement to give a signed statement containing his knowledge
about the matter under investigation in spite of Poole's reluctance to get involved
27 Le Baron v Kern County Farm Labor Union, Local 128, National Farm Labor Union
(Di Giorgio Wine Company), 80 F
L 'quor it Distillery Workers Union,
International Union of America, A F
Supp
Local
of L
151, 155-156 (S D Calif) ; Douds v Wine,
1, Distillery, Rectifying and Wine Workers
(Schenley Distillers Corporation), 75 F Supp
184, 186 (S D N Y ) See also Wallapoint Ousters, Inc v Ewing, 174 F 2d 676, 696
(C A. 9) ; N L R B v. Knight Morley Corp , 251 F 2d 753, 758 (C A 6), cert dewed
357 U S. 927; N L R B v. Huntsville Manufacturing Company, 203 F 2d 430, 433
(C A 5) ; NLRB v. Greensboro Coca Cola Bottling Company, 108 F. 2d 840, 844, 845
(C A 4) ; N L R B v. Mattison Machine Works, 365 U.S 123.
29 Board's Statements of Procedure, Series 8, as amended, Sections 101.4, 101 5, and
101.6.
CAPITOL FISH COMPANY 851
or do harm to his job and his family. It ,appears to the Trial Examiner that Miller
was seeking the truth, and was following the technique of obtaining the version of
each prospective witness on a statement signed by him.
I find from Miller's testimony corroborated by that of McDonald, Blackshear,
Baldwin, and Bell, that Hill, while present, did not participate in Miller's ques-
tioning of prospective witnesses, and did not say anything to them about the subject
of the investigation in Miller's presence or elsewhere where Miller could prevent it
I further find that in interviewing prospective witnesses other than Poole, neither
Miller nor Hill asked them to help Hill because he was out of work or had a family.
I do not find any evidence that Miller obtained, made use of, or attempted to make
use of any statement which was false or lacking in evidentiary value on its face or
which Miller's evaluation of all the evidence disclosed to obtain false or untrue state-
ments, or contained an accounting of events, conversations or other circumstances
lacking in evidentiary value. In reaching this finding, I have considered Archie
Bell's and Rosezell Johnson's statements and Miller's questions to them at the May
1959 hearing. I have also considered Abe Winston's statement and the questions
Miller directed to him at the May 1959 hearing. Included in Abe Winston's state-
ment is a paragraph in which he states that the union said that he should not tell the
boss he was for the union because he would be fired if he did. Winston's direct exam-
ination is silent as to this matter. It was not binding on Respondent and inadmissible.
When cross-examined on his statement by Respondent's counsel, Winston denied that
he stated it to Miller when he was interviewed. From a consideration of all the evi-
dence, I find that Winston did make this statement to Miller, and Miller copied it in
the statement as made, but that in the hearing before the Trial Examiner, at which
a representative of the Teamsters was present, and which lacked the privacy of the
interview, Winston denied he gave this statement to Miller either because he could
not recall doing so, or to avoid displeasing the Teamsters Union and to protect him-
self from action which he believed the Teamsters might take to harm him in his
occupation as a truckdriver. The only logical explanation for its presence in the
statement is that Winston made it to Miller and Miller copied it down. It served no
ulterior purpose Respondent was not prejudiced by this course of events.
I find and conclude that Miller's statements to Baldwin and Johnson with respect
to their rights and remedies under the Act, as well as suggestions to them that they
appeared to have grounds for filing unfair labor practice charges, did not exceed per-
missible limits 29 In any event the charge filed by Rosezell Johnson was withdrawn
after Miller found it lacking in merit. He solicited the withdrawal and recommended
its approval by the Regional Director. The Trial Examiner recommended to the
Board dismissal of the complaint in this proceeding insofar as it alleged that Re-
spondent engaged in discriminatory conduct against Baldwin, and the Board adopted
his recommendation. The evidence dealing with Baldwin's charge that is a matter of
record and covered in my Intermediate Report shows that what Miller may have said
to Baldwin that encouraged him to file the charge was not arbitrary conduct intended
to harass Respondent, but conduct designed to bring Baldwin's discharge under
scrutiny in the manner provided by the Act. Respondent was not prejudiced by the
filing of these two charges.
Under section III, supra, of this Intermediate Report, I vacate and set aside my
prior finding that a few days after the September 2, 1958, request of the Retail
Union for recognition reached Respondent, Vice President Jacob Levitt had a con-
versation with former employee James H. McDonald in which McDonald volunteered
that the Retail Clerks was organizing the plant, and Levitt asked him who the leaders
of the Retail Union were, saying at the same time that he knew two or three of
them. I based my concluding finding that Respondent had given the impression of
engaging in surveillance in violation of Section 8(a) (1) of the Act on the statement
of Jacob Levitt to McDonald as well as on a statement by President Julius Levitt to
employee Harrington that he knew how many of the employees attended union meet-
ings. This latter statement accompanied Julius Levitt's question to Harrington,
whether he attended union meetings. Since the concluding finding that Respondent
gave the impression of engaging in surveillance is still supported by substantial evi-
dence after my vacating and setting aside the evidentiary finding dealing with the
incident involving Jacob Levitt and McDonald, I leave this concluding finding stand
p Physicians & Surgeons Building, Inc., 135 NLRB 1367; Magic Slacks , Ins , 136
NLRB 607.
681-492-63-vol . 140-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and reaffirm it. I have not premised any finding of a violation on testimony elicited
after a witness ' recollection was refreshed by reference to a statement or affidavit.
I have reviewed my other findings of violations of Section 8(a)(1) of the Act and
I hereby reaffirm them . My findings of a discriminatory discharge of Bennie Hill
were not involved in the May 31, 1962, hearing since the testimony was not con-
nected with evidence gathered by Miller by the technique of taking statements of
prospective witnesses . The testimony supporting the findings and conclusions of
Hill's discriminatory discharge was that of the testimony of Respondent' s witnesses
Julius and Jacob Levitt, Harvey Anglin , and Dan Connally Lyle, corroborated by
the testimony of Hill. Affidavits of the Levitts and Anglin were taken by Respond-
ent's counsel and furnished to the General Counsel. General Counsel did not take
Lyle's statement or interview him prior to his testifying for Respondent . The evi-
dence is that he gave no statement to anyone . Hill's statement was not taken by
Miller -but by another attorney on the General Counsel 's staff.
I find and conclude that the evidence taken at the May 31, 1962, hearing pursuant
to the remand of the Fifth Circuit and the Board , and the other evidence, do not
constitute grounds for changing my ultimate and concluding findings, conclusions of
law, recommended order, and notice in this case.
RECOMMENDATIONS
For the reasons stated in my analysis and concluding findings, it is recommended
that the Board affirm the Decision and Order it issued in this case on March 7 , 1960..
Salinas Valley Broadcasting Corporation and/or Central Valley
Communications Corporation , d/b/a KSBW-TV 1 and Ameri-
can Federation of Television and Radio Artists, San Francisco
Local, AFL-CIO. Case No. 'O-CA-2228. January 25, 1963
DECISION AND ORDER
On September 6, 1962, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
The Trial Examiner also found the Respondent had not engaged in
certain other unfair labor practices and recommended that the com-
plaint be dismissed as to such allegations. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief?
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
1 The name of the Respondent appeared as Salinas Valley Broadcasting Corporation in
the complaint . However , It appears from Respondent 's answer to the complaint that
Central Valley Communications Corporation is a successor corporation.
2The Respondent 's request for oral argument is denied, as , the record, including the
exceptions and brief, adequately presents the issues and positions of the parties.
140 NLRB No. 77.