Kansas Refined Helium Co.

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1032 (N.L.R.B. 1969)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George A . Angle, d/b/a Kansas Refined Helium
Company and Oil , Chemical and Atomic Workers
International Union , AFL-CIO. Cases 17-CA-3021
and 17-CA-3021-2
June 25, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On September 12, 1967, Trial Examiner Sidney
D. Goldberg issued his Preliminary Decision in the
above-entitled cases finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of Section 8(axl) and (3) of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Preliminary Decision.'
Thereafter, the Respondent and the Charging Party
filed exceptions to the Trial Examiner's Preliminary
Decision, and supporting briefs, and the Charging
Party filed a request for oral argument.2
Previously, on March 8, 1967, Respondent filed
with the Trial Examiner a motion to reopen the
record and for further hearing to take the testimony
of Thomas E. Garrett, an employee who allegedly
gave false testimony in a Board instituted court
proceeding, bearing on certain credibility resolutions
and recommendations of the Trial Examiner. By
Order dated March 15, 1967, the Trial Examiner
denied Respondent's motion. The Respondent
having duly excepted to the Trial Examiner's rulings
in that regard, the Board, by Order dated January
30, 1968, directed that the record be reopened and
the case remanded to the Trial Examiner for the
purpose of taking Garrett's testimony. On December
30, 1968, Trial Examiner Sidney D. Goldberg issued
his Decision and Report finding, on the basis of
expert medical testimony, that Garrett was, and
would continue to be, physically and emotionally
unable to testify without substantial risk to his
mental stability and recommending that the Board
rescind its Order of January 30, 1968, and proceed
to its consideration of Respondent's exceptions to
the Trial Examiner's Preliminary Decision upon the
record now before it. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and
Report, and a supporting brief, and the General
Counsel filed an answering brief.'
On December 20, 1967, Trial Examiner Sidney D.
Goldberg issued his Supplemental Decision in the
above-entitled cases finding that the Respondent had
'Decision with respect to 8(a)(5) allegations of the complaint was
deferred by the Trial Examiner.
'The Respondent's request for oral argument before the Board is hereby
denied as the record and briefs adequately present the issues and positions
of the parties.
'In view of Garrett ' s mental condition , his testimony , if taken, would not
add or detract from the record.
engaged in and was engaging in certain unfair labor
practices within the meaning of Section 8(a)(5) of
the National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Supplemental
Decision. Thereafter, Respondent filed exceptions to
the Trial Examiner's Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearings and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decisions, and the entire record in these
cases, including the exceptions and briefs, and
hereby adopts the findings, conclusions,' and
recommendations' of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent , George A. Angle, d/b/a
Kansas Refined Helium Company, Otis, Kansas, its
officers, agents, successors , and assigns , shall take
the action set forth in the Trial Examiner's
Recommended Order.
IT IS FURTHER ORDERED that the Board 's Order of
January 30, 1968, remanding the case to the Trial
Examiner for the purpose of taking further
testimony be, and it hereby is, rescinded.
'In essential agreement with the Trial Examiner, we conclude that
Respondent violated Section 8(ax5) of the Act by rejecting the Union's
bargaining demand and, thereafter , upon the Union's filing of a petition
for an election, embarking upon an antiunion campaign marked by
massive and systematic violations of Section 8(a)(1) and (3) of the Act.
Those violations , which included, inter alia, coercive interviews with
virtually every employee , threats of plant closure and discharge for union
activity, and the discharge of six union supporters , were obviously designed
to undermine the Union's support , destroyed the conditions necessary to
the holding of a free election on the Union' s petition, and made the
holding of a fair election in the future unlikely . For these reasons, we
conclude that, in order to protect the statutory rights and interests of
employees and to remedy the unfair labor practices committed, it is
essential that the Respondent be ordered to recognize and bargain with the
Union as the statutory representative of its employees for the purposes of
collective bargaining N.L R.B. v. Gissel Packing Company. 398 U.S. 336
(June 16, 1969).
'We agree with the Trial Examiner 's recommendation that Suns be
reinstated because there is no evidence to show conclusively that Sims
engaged in misconduct.
TRIAL EXAMINER'S DECISION AND
REPORT
SIDNEY D. GOLDBERG, Trial Examiner: The question
for decision at this time is whether Thomas E. Garrett,
176 NLRB No. 115
KANSAS REFINED HELIUM CO. 1033
whose testimony the Board has directed me to take herein,
is physically able to testify . I find that he is not.
1. History of the case
This proceeding , commenced by the issuance of a
complaint alleging that George A. Angle, doing business
as Kansas Refined Helium Company, had violated Section
8(a)(l), (3), and (5) of the Act, came on for trial before
me in Great Bend , Kansas, January 18- 20, 1967,
immediately following the trial , before the United States
District Court for the District of Kansas, at Wichita, of
an application for ancillary injunctive relief under Section
10(j) of the Act . Garrett, who is one of the employees
alleged to have been dismissed in violation of Section
8(aX3) of the Act , testified before the court but did not
testify before me. Respondent made no particular point
during the trial before me concerning Garrett's failure to
testify and made no effort to call him as a defense
witness.
On February 14, 1967, Respondent filed a motion "to
reopen record and for additional hearing ." The motion
stated that , on January 21, Respondent 's counsel, Marvin
Martin , together with one of his associates , Stanley
Churchill , and Patrick Kelly, attorney for the Charging
Union , had conducted an interview with Garrett, which
was recorded , and a transcript of the recording was
attached to the motion.
The motion stated that the recording shows that some
of the testimony given by Garrett and others before the
United States District Court in the injunction proceeding
was false and it argued that the giving of such false
testimony by Garrett might justify the Board in denying
his reinstatement . It also stated that Garrett 's testimony
concerning. the status of senior operators , in a deposition
taken in connection with the injunction proceeding, was
incorrect and that Garrett could give additional evidence
on that point . Accordingly , the motion requested that the
record be reopened for additional hearing on those
matters.
By order dated March 8 , 1967, I denied the motion,
pointing out that a motion to reopen , made to the United
States District Court ,' was still undetermined and that the
court was the proper forum , at least initially , for the relief
requested . The order also noted that Garrett' s statements,
in the transcript of the interview , were vague and
inconclusive on the authority of the senior operators, that
the evidence on this subject was not newly discovered, so
that Respondent could have called Garrett as a witness
and, finally, that Garrett 's testimony on this subject would
be cumulative.'
'That motion was based upon the same transcript of the recorded
interview submitted to me.
'On April 5, 1967, Judge Brown rendered his decision granting the
application for an injunction. He disposed of Respondent's motion to
reopen the record in the following passage:
Since the hearing in this case , respondent filed a motion to reopen the
record and to renew discovery proceedings concerning depositions from
Garret and Sims , and such other persons as should appear necessary. In
support of the motion , respondent offers a transcription of a
conversation of the witness Tom Garret with Mr. Martin , attorney for
respondent , and Mr . Kelly, attorney for the Union. Garret apparently
requested the interview to correct statements in his testimony which he
felt, upon reflection , were not true . We have examined that transcription
and Garret's testimony at the hearing . We find no variances which are
material to our decision to grant injunctive relief . Garret stated in the
interview that he did not know who wrote any of the anonymous letters.
He did make certain statements which tend to discredit the testimony of
Sims concerning those letters . Much emphasis has been placed on these
My preliminary decision , which dealt with the
allegations of interference and unlawful discharge, was
issued September 12, 1967; it found that the senior
operators were not supervisory employees and that
Garrett , among others , had been unlawfully discharged.
Respondent filed exceptions to the Preliminary
Decision , specifically excepting to the order of March 8,
1967, which denied the motion to reopen the record. The
brief submitted to the Board in support of the exceptions
states that "Garrett failed to appear for trial" and argues
that this alone "is sufficient for a presumption against
him." The argument nevertheless continues by stating that
Garrett should also be denied reinstatement by reason of
his "activity" in the injunction proceeding , which is
particularized as having "spoke [n] as [a ] witness for the
Board in the prosecution case."3
By order dated January 30, 1968 , the Board stated that:
having duly considered the Respondent's
exceptions and brief, and the entire record in the case,
is of the opinion that Respondent's exceptions to the
Trial Examiner' s denial of its motion to reopen and
remand has merit . Accordingly,
IT IS HEREBY ORDERED, that the record herein be
reopened and the case remanded to the Trial Examiner
for the purpose of taking Garrett's testimony, as it
bears on the substantive issues and issues of credibility
in the case, and such other evidence as may be offered
by the General Counsel and Charging Party in rebuttal
thereof.
2. Efforts to obtain Garrett ' s testimony
The first effort to set a hearing pursuant to the Board's
order was the suggestion of the date March 21 by the
General Counsel . This date was not convenient for
Respondent's counsel and, by order of March 22, 1968, I
directed that a hearing be held on April 24, 1968.
On April 24 the matter was called for hearing before
me in Wichita , Kansas . The General Counsel, the
Charging Party, and the Respondent were all represented.
While Garrett was said to be personally present, he was
represented by counsel who reported that he had talked
with Garrett ' s personal physician ; that the physician had
informed him' that Garrett was recognized as an
"emotionally unstable person ," and that for him to take
the witness stand might be harmful to his health,
"destroying" him and his usefulness to his family. After
letters, more , we think , than they deserve . They contained no threats
against any persons or against property of the respondent . They were
not distributed by the anonynous writer at large throughout the plant,
but mailed only to Angle . The writer (or writers) criticized management
personnel at the plant . There was no personal criticism or abuse of
Angle himself. The letters purported only to advise Angle of a difficult
situation at the plant created by certain of his supervisory personnel. The
letters reflect no attempt to create strife or discontent among the men,
nor were they so used . If anything, they were merely symptomatic of
such unrest.
The motion to reopen is denied.
The petitioner is entitled to injunctive relief.
The Court of Appeals for the Tenth Circuit affirmed Judge Brown's
order on August 28, 1967, with modifications only as to employees Sims
and Rodgers (382 F.2d 655).
'Presumably in deference to the District Court decision granting the
injunction, and the affirmance thereof by the Court of Appeals on August
28, 1967, the brief, which was filed October 20, 1967, goes no further than
to state that Garrett , in his recorded interview "spoke of 'perjury' and a
'direct lie.' "
'Respondent's counsel withheld any objection to counsel 's statements
concerning this conversation.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion among counsel, it was agreed that Garrett
would submit to psychiatric examination in the near
future, May 4 to 7 was suggested, with the possibility of a
report about May 15. Respondent's, counsel stated that, if
they had the psychiatric report about that date, they could
study it, consult with the examining psychiatrist if
necessary, and then determine the course they wished to
pursue. Accordingly, I continued the hearing to June 11,
1968, with a direction that copies of the psychiatric report
on Garrett be transmitted, as soon as completed, to all
counsel in the case.
On June 6, a motion was filed on behalf of Garrett,
stating that he had been under hospitalization for
treatment and psychiatric evaluation, and that a negative
report on his condition was expected in the near future.
Pending receipt of this report, application was made for a
continuance of the hearing. Respondent interposed no
objection and the hearing was continued to July 30.
The report of the examining psychiatrist, Austin J.
Adams, M.D., was distributed to all counsel about June
17. It concluded, on the basis of Garrett's history and the
psychological tests which had been given, that Garrett
suffered from:
a rather severe characterological disturbance of
long duration . . . in which there is disorganization of
the thinking process manifested by hallucinations and
delusions that preclude discernment of what is real and
what is fantasy.
Dr. Adams also stated that, in his opinion, the stress of a
court appearance would aggravate Garrett's illness, which
had subsided somewhat since his hospitalization.
On the basis of the psychiatric report, the General
Counsel moved, on July 2, that the hearing be ordered
closed and the case transferred to the Board. Garrett,
through counsel , joined in the request. Respondent
opposed these motions, pointing out that another
psychiatric examination of Garrett had been ordered by
the United States District Court' and Respondent
requested that the hearing be conducted as scheduled to
take evidence from both psychiatrists, as well as to subject
their testimony to cross-examination. Accordingly, by
order dated July 26, I denied the motions to close the
hearing and directed that it be resumed on September 10,
1968; that Garrett appear and testify if able to do so; and
that, if he should be unable to testify, witnesses be
produced to testify concerning his condition.
3. The evidence concerning Garrett's condition
The hearing resumed on September 10 before me at
Wichita, Kansas, with all parties, and Garrett, represented
by counsel.' Garrett's counsel stated that, as noted at the
April 24 hearing, Garrett's work schedule called for a
4-day layoff from May 4 through 7, and that
arrangements had been made for his examination during
that period; but that Garrett did not report for
examination as scheduled; that however, he was located
several days later at a State hospital, confused and
distressed; that he was transferred to another hospital and
'This examination was ordered by the court in connection with
Respondent's motion , filed June 14, for modification of the injunction to
relieve Respondent from obedience to its provision requiring employment
of Garrett . It appears from the record herein that the Respondent
suggested , and the court appointed , Dr. C. J Kurth as the examining
psychiatrist ; that Dr Kurth , as well as Dr. Adams, testified before the
court on August 30 concerning Garrett ' s ability to perform his duties at
Respondent 's plant and that the motion was denied.
to the care of the family-chosen psychiatrist, Dr. Austin J.
Adams, who examined and treated him.
Dr. Adams' confirmed counsel 's statement that Garrett
had not reported for examination as scheduled; that he
found him in the State hospital where he had been for 2
or 3 days; that on May 11 he transferred him to another
hospital and kept him under his own care and
examination until June 4. After that date, he released
Garrett from the hospital but continued to see him at his
office until July 11.
When he began his examination of Garrett in May, Dr.
Adams testified, he found him tense and anxious, feeling
that he was being watched and, at least symbolically,
threatened with hanging; he was concerned about his
having testified in court and he was uncertain whether he
had acted correctly. Dr. Adams continued to test and
treat him, diagnosing his illness as a condition of
"schizophrenia reaction" of "paranoid type." He also
concluded that the aggravated state of Garrett' s illness
was due to his involvement in the litigation and his
concern over whether he had testified truthfully or
"injured" anyone.
At the completion of the course of treatment in the
hospital, Dr. Adams testified, Garrett's symptoms had
subsided sufficiently so that, considering his own safety
and the safety of others, he could be released from the
hospital. Dr. Adams stated, however, that he did not
consider Garrett as "cured" but only in a "social
remission"; i.e., with the problem latent and a flareup
possible.
Dr. Adams testified that he felt that the prospect of
testifying was "a precipitating factor" in the condition of
illness he found in Garrett and that, in his opinion, if
Garrett were required to testify,
. the possibility of precipitating a return of the illness
would be so great that I would state that I felt he
should not testify.
Dr. Adams also testified that Garrett was able to work
and that engagement in his normal routine would have a
therapeutic effect because he liked his work' and because
the performance of his duties at the plant was not a factor
contributing to his condition.
Dr. Adams testified that, in his professional opinion,
for Garrett to maintain the emotional stability he had
attained, it would be necessary for him to continue to take
the prescribed medication and to remain under
'In addition to the testimony of witnesses and statements of counsel in
the sessions before me (the transcript of which has been corrected by order
dated December 15, 1968 ), 1 have drawn on the official record of the
proceedings ancillary to this case in the District Court and the Court of
Appeals, of which I take official notice.
'Dr. Adams ' qualifications wire not questioned. He testified that he had
been a practicing physician since 1937; that he had trained for 2 years as a
resident in psychiatry at the Mennmger Clinic; that he had further training
in psychiatry at the National Naval Medical Center; that he had practiced
as a psychiatrist in the United States Navy, and that he was engaged in
practice , as a specialist in psychiatry , in Wichita.
'Garrett had been reinstated , pursuant to the injunction , on August 14,
1967, and, at the April 24, 1968 , hearing in this case , Respondent's counsel
stated that his performance was satisfactory . Garrett continued to perform
his duties through May 2 but, when he reported for duty on June 10, some
days after his release from the hospital , the plant manager refused to
permit him to go to work, stating that his "reinstatement " was a matter to
be handled by the attorneys for the parties . On June 14, Respondent filed
the motion for modification of the injunction referred to above At the
close of the hearing on August 30, Judge Brown denied the motion and
Garrett was restored to duty September 7. He was still at work on
September 14 when the hearing in this matter was completed
KANSAS REFINED HELIUM CO. 1035
observation . Under those conditions and without any
unsettling influences , he felt the chances of Garrett having
a recurrence would be reduced to a minimum . If, however,
he should be required to testify in this case , Dr. Adams
gave it as his opinion that there would be great danger of
his falling into another similar condition , in the throes of
which his memory would be blocked or distorted and he
would be unable to distinguish between fact and fantasy.'
Respondent called as a witness Dr. C. J. Kurth, the
psychiatrist he had suggested to the District Court in
connection with the motion to modify the injunction."
Dr. Kurth testified that he saw Garrett once , when he
examined him on July 15 , 1968; that the examination
included psychological tests ; that he took a history from
Garrett which disclosed previous treatment for a similar
condition in 1963; and that he examined the records of
Garrett' s 1963 hospitalization . He concluded that
Garrett' s personality was schizophrenic but stated that, at
the time of the examination , Garrett was functioning in
the "mid-high -average I .Q. range" and was not in a
"psychotic state ." Accordingly , in Dr . Kurth' s opinion,
Garrett would have been capable of testifying at that time.
On cross-examination , however, Dr. Kurth conceded
that placing Garrett on the witness stand could break
down the "adjustment" he had shown during the
examination and precipitate a "psychotic episode."
Moreover, Dr. Kurth ' s report to Garrett ' s counsel, dated
July 31, 1968, and based upon the same examination,
states that:
1. At the present time , Mr. Garrett appears to be in
a reasonable state of adjustment . This is probably due
to the fact that his condition is in remission and that
the medicine , which is being supplied, helps
considerably to keep him adjusted.
2. To place him on a witness stand could certainly
break down his adjustment mechanism , shatter his
defense and might even precipitate a psychotic episode.
I do not anticipate this picture will change much in
time.
These are the comments that are followed by, and show
the context of, Dr . Kurth ' s statement , which is quoted in
Respondent ' s brief, that:
. . , if he is ever going to need to go on the witness
stand, or a deposition be taken , I feel that he is
currently in as good a condition of adjustment as one
might anticipate in the foreseable future.
This statement , in context, falls far short of an opinion
that Garrett is in a satisfactory condition to testify.
Moreover , the paragraph immediately preceding it clearly
states that Garrett ' s present condition of precarious
balance cannot be expected to improve in the foreseeable
future.
Dr. Kurth testified that he had not been informed of
Garrett' s conduct immediately following his testimony in
the trial of the injunction proceeding in January -February
1967 and that he did not know of Garrett ' s conduct in
'Respondent ' s counsel, during his cross-examination of Dr . Adams,
called for a report made by Dr . Adams to Garrett's attorney. It was
produced and examined by Respondent's counsel who , although specifically
invited to make it part of the record , did not do so . I infer , therefore, that
this report is consistent with Dr. Adams' testimony.
"Dr. Kurth 's qualifications were not challenged . He testified that he had
been a physician since 1935 ; that he had been trained in psychiatry during
residencies at hospitals in Kansas , California , and at the Mayo Clinic in
Rochester , Minnesota ; and that he had been a specialist in psychiatry since
1940.
early May 1968, when he was confronted with the
probability of being called to testify pursuant to the
Board 's remand order . After learning of this incident, Dr.
Kurth testified that in his opinion , if Garrett were to
receive notice that he would be required to testify again
concerning the labor dispute and that his earlier testimony
on this matter would be subjected to reexamination, these
influences would produce a condition of anxiety, the
intensity of which he could not predict.
Respondent has pointed out that Garrett testified before
Judge Brown in the District Court on September 13, 1967,
on a motion to adjudicate Respondent in civil and
criminal contempt of the Section 10(j) injunction , and that
there was no evidence that his testifying produced any
psychological reaction at that time or subsequently
thereto."
It appears beyond doubt that , since the events of June
to September 1966 which form the basis for the findings
of unfair labor practices herein, Thomas E . Garrett has
twice suffered serious emotional and psychological
disturbances connected with his testifying concerning
them . Both Dr. Adams and Dr. Kurth testified that, in
their professional opinion , there is a strong likelihood
that , if faced with a requirement that he testify again
concerning those events, Garrett ' s emotional stability
would again be upset to the extent that he would be
unable to testify reliably and that his general
psychological condition might again become psychotic.
Other than the fact that Garrett did testify, in
September 1967, on different , contemporaneous, and
relatively undisputed matters , there is no evidence now
before me to contradict the expert testimony of these two
psychiatrists concerning Garrett' s probable reaction if
required to testify at a reopened hearing on the unfair
labor practices . Were this a criminal prosecution , in which
the applicable standard of proof is "beyond a reasonable
doubt," I might be constrained to hold the fact that he
testified in September 1967, without suffering a
breakdown , sufficient to create a reasonable doubt that a
breakdown would follow if he were directed to give
testimony in accordance with the order of remand.
Greater weight than this , however , I cannot give to this
fact , as opposed to the credible testimony of the two
psychiatrists who agreed that, to require Garrett to testify
again, concerning both the activities held herein as unfair
labor practices and his former testimony on the subject,
would probably precipitate a situation in which any
testimony he might give would not only be unreliable but
from which he might suffer serious psychological injury.
Since I am convinced that the decision on the matter
before me , like the decision of other issues before the
Board, is properly to be determined by a fair
preponderance of the evidence , I cannot avoid the
conclusion that the undisputed evidence of the two
psychiatrists concerning the likely effect of requiring
Garrett to testify far outweighs the slight possibility that
"At Respondent' s request, I have read Garrett 's testimony at that
hearing, not to make any finding upon it , but only to determine whether
there are any superficial indications reflecting on his ability to testify. I
find from the transcript of Garrett' s testimony that it dealt almost
exclusively with Garrett's return to work pursuant to the injunction and
that questions by the General Counsel concerning Garrett's original
training in the plant in 1966 were objected to by Respondent 's Counsel as
"an attempt to go back into his case in chief " Moreover , I find nothing in
the transcript contributing toward a determination of whether Garrett
would be able to give reliable testimony concerning the matters at issue in
this unfair labor practice case.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he might testify competently and without serious in the Board's order and that his condition is not likely to
psychological aftereffects. improve in the foreseeable future . Accordingly , I return
this matter to the Board with the recommendation that it
RECOMMENDED ORDER rescind the order of January 30 , 1968, and that its
consideration of Respondent's exceptions to the Trial
From the foregoing it follows, and I find , that Thomas Examiner 's Preliminary Decision proceed upon the record
E. Garrett is now physically unable to testify as prescribed now before it.