Keener Rubber, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1963

142 N.L.R.B. 916 (N.L.R.B. 1963)

916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge any employee because he is a member of Amalga-
mated Meat Cutters and Butcher Workmen of North America, AFL-CIO,
District Union No. 99.
WE WILL recognize and bargain collectively with Amalgamated Meat Cutters
and Butchers Workmen of North America, AFL-CIO, District Union No. 99,
as the exclusive bargaining representatives of all our employees in the unit
described below with respect to rates of pay, wages , hours of work, and other
terms and conditions of employment, and will embody in a signed agreement
any understanding reached. The bargaining unit is:
All employees in the meat departments at all of the Company's Evans-
ville, Indiana , stores including the head meatcutter, Journeymen meat-
cutters, apprentices, wrappers, and cleanup men, but excluding grocery,
produce, bakery, and delicatessen employees and all office employees,
guards, professional employees and supervisors as defined in the Act.
WE WILL make Albert E. Barton whole for any loss of pay he may have
suffered as a result of the discrimination against him.
All our employees have the right to form, join, or assist any labor union,
or not to do so.
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of these rights.
ECONOMY FOOD CENTER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify Albert E . Barton if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana , 46204, Telephone No.
Melrose 3-8921 , if they have any question concerning this notice or compliance
with its provisions.
Keener Rubber, Inc. and Lodge 2222 , International Association
of Machinists, AFL-CIO. Case No. 8-CA-2748. June 4, 1963
SUPPLEMENTAL DECISION AND ORDER
On September 17, 1962, the Board issued a Decision and Order in
the above-entitled proceeding,' finding that the Respondent had re-
fused to bargain collectively with the Union, the certified representa-
tive of its employees, in violation of Section 8(a) (5) and (1) of
the Act.
On October 11, 1962, the Respondent filed with the Board a motion
to reopen record and consider newly discovered evidence, and support-
ing affidavits, alleging that newly discovered evidence cast doubt on
the credibility of the Union's witnesses who testified in the repre-
sentation proceeding concerning the supervisory status of one Mowen
whom the Board, over the Respondent's objection, found to be a su-
pervisor and ineligible to vote. On October 29, the Union filed with
the Board an opposition to the motion, and supporting affidavits,
alleging that the information presented in the Respondent's motion
1138 NLRB 613.
142 NLRB No. 102.
KEENER RUBBER, INC. 917
and affidavits was false. On November 14, the Respondent filed a
reply to the Union's opposition to the motion.
On the same date the Respondent filed its motion with the Board,
it also filed with the United States Court of Appeals for the Sixth
Circuit a motion for leave to adduce additional evidence. On Octo-
ber 19, the clerk of the court of appeals notified the Board that the
court had granted this motion.
On November 20, the Board issued an Order reopening record and
remanding proceeding to Regional Director for further hearing, be-
fore a Trial Examiner, for the purpose of taking additional evidence
on the credibility issue which had been raised.
Pursuant to notice, a supplemental hearing was held on Janu-
ary 22, 1963, before Trial Examiner A. Norman Somers, who was
the Trial Examiner at the original hearing. All parties were af-
forded an opportunity to present evidence.
On March 28, the Trial Examiner issued his Supplemental Inter-
mediate Report, attached hereto, finding that no evidence had been
adduced to warrant a belief that any of the testimony credited by
the hearing officer in the representation proceeding was false. There-
after, the Respondent filed exceptions to the Supplemental Intermedi-
ate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the reopened hearing and finds that no prejudicial error was coin-
mitted. The rulings are hereby affirmed. The Board has considered
the Supplemental Intermediate Report, the Respondent's exceptions
and brief, and the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.
We are convinced, after a review of all the evidence, that the credi-
bility determinations made by the hearing officer in the representa-
tion proceeding were correct, and that no evidence was adduced at the
reopened hearing to cast doubt upon these determinations. The
Board, therefore, reaffirms its original Order issued herein.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
This matter arises under an Order of the Board reopening the record for the
purpose of taking evidence and determining the issue raised by Respondent 's motion
to adduce.
The motion concerns the matter in dispute in the representation proceeding (Case
No. 8-RC-4276 not published in NLRB volumes ), in which the Board issued the
certification constituting the predicate of the bargaining order here . In the consent
election held May 26 , 1961 , the Union had challenged the ballot of William Mowen
on the ground that he was a supervisor . A hearing was held thereon on August 3,
1961, before John Kollar, as hearing officer. On the record as made , he issued his
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
report on challenge, finding Mowen to be a supervisor, and recommending the chal-
lenge be sustained. After consideration of the exceptions thereto by Respondent,
the Board, on March 8, 1962, sustained the hearing officer in a Supplemental Decision
and Certification of Representatives, in which, on the basis of the resultant union
majority of 19 to 18, it certified the Union as exclusive bargaining representative in
the unit involved. On refusal of Respondent to honor the Union's bargaining
request, the General Counsel issued the complaint in this case under Section 10,
culminating after hearing in the subsisting Decision and Order herein, issued
September 17, 1962.1
On October 11, 1962, Respondent filed with the Board a motion to reopen the
record and to adduce additional evidence relating to the issue of the challenged
ballot in the representation proceeding. The motion was based on a statement made
to it on October 8, 1962, by Dave Milburn, a witness for the Union in the representa-
tion hearing, impugning his testimony as having been induced the night before by
two union representatives at a session in which four other of the Union's witnesses
had been present. On October 29, the Union filed its papers in opposition, which
included an affidavit by Milburn repudiating his statement to Respondent and re-
affirming the truth of his testimony. Respondent filed a reply on November 14,
1962. On November 20, 1962, the Board issued its Order reopening the hearing for
the purpose of taking testimony on the issue raised by the motion to adduce, con-
cluding with the direction that-
. . . upon the conclusion of the hearing, the Trial Examiner shall prepare and
cause to be served upon the parties a Supplemental Intermediate Report con-
taining credibility resolutions, findings, and recommendations based upon the
evidence received pursuant to the provisions of the Order . . . .
On January 3, 1963, the Board issued a clarifying Supplemental Order directing
that:
the evidence to be taken in this proceeding shall be limited to the issues
of whether the witnesses who testified as to Mowen's supervisory status in the
representation proceeding may have testified falsely; that circumstances in which
Milburn gave to the Respondent an affidavit indicating that perjured testimony
has been presented at the representation hearing; the circumstances in which
Milburn gave to the Union a conflicting affidavit; and the circumstances in
which other witnesses gave affidavits to the Union.2
A hearing was held before Trial Examiner A Norman Somers pursuant to the
above in Alliance, Ohio, on January 22, 1963, in which all parties were represented
by counsel and afforded the opportunity to present evidence. Evidence was presented
only by the Respondent and the Union, the General Counsel limiting himself to
putting into the record the formal papers embodying the proceedings previously
described. Oral argument was waived, and Respondent has filed a brief, which
has been duly considered. (The Union, though accorded opportunity to file a
brief, has written stating it will rest on the record, since Respondent adduced no
evidence in support of the allegations on which the motion to adduce was founded.)
Upon the record (corrected by order issued February 6, 1963), and my observation
of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE EVIDENCE ADDUCED AT THE REMAND
As stated, the basis for the motion to adduce was a transcribed statement given by
Dave Milburn at Respondent's office to its attorney on October 8, 1962, after being
sworn by a notary (the reporter) but not signed by him. In essence, it was to the
effect that the night before the bearing of August 3, 1961, at the home of Charles
and Phyllis Kannal, he, Larry Baum and John Farmer (that group constituting
five of the Union's witnesses at the next day's hearing) were told "what to say
and what not to say" by Philip Ganni, the Union's local organizer, in the presence
of International Grand Lodge Representative, Louis E. Schmidt, whom Milburn
described as the "lawyer"; and that from the Kannal home the group was taken
to a "beer joint" called "Sam's," where they were "filling us full of liquor," and
1 138 NLRB 613.
2 The Supplemental order came after the Trial Examiner wrote the parties prior to
hearing, that he construed certain broad language In the reopening order as requiring a
hearing de novo on Mowen's supervisory status and suggesting that any party disagreeing
could seek clarification from the Board The Union appealed, after which the Board
issued its limiting order.
KEENER RUBBER, INC. 919
where again in the presence of the "lawyer," Ganni "told us what to say and what
not to say." In the statement he indicated he did not know what specifically was dis-
cussed with any of the witnesses except himself. The particulars he gave are de-
scribed and separately considered in the next section of this report. We deal at this
stage with what was adduced on the remand in impugnment of the testimony at the
hearing.
At the reopened hearing, Milburn called to the stand by Respondent, testified that
at the meeting the night of August 2, 1961, he and the others had been told to tell only
the truth, and he confirmed the truth of his testimony at the hearing. He testified
that his statement to Respondent of October 8, 1962, was given after he had been
drinking at a cafe in celebration of his wife's having a baby. He recited that his
visit to Respondent climaxed a series of events beginning that morning with his
meeting Rodger Baum (leader of an independent union seeking to dislodge the
Charging Union) just outside the cafe, in which he asked about getting his job back
(he having been discharged for cause about a year earlier), followed by his later
calling President Miller of Respondent, after which he was picked up from the cafe
by Rodger Baum, and brought to Respondent's office, where he gave his statement,
then talked to the boys at the shop for a while, and finally was brought back to the
cafe by Rodger Baum, who left him there to resume his solitary revels.
The opposing descriptions of Milburn's condition comprise a study in polar op-
posites. At the one extreme, Milburn portrayed himself as having been drunk during
his visit at Respondent's office, so much so that except for remembering that a
lawyer asked him a "bunch of questions" in the presence of a reporter, he had no rec-
ollection of the questions put to him, the answers he gave, or (when I asked about it)
even the subject matter. (But he testified he remembered his conversation with
President Miller before counsel and the reporter arrived and-answering my in-
quiry-was sure that counsel's questions did not pertain to baseball or the weight
of his offspring.) At the other, Respondent's witnesses insisted he was quite sober.
This description came even from Rodger Baum, who admitted that when that
afternoon he picked Milburn up in the cafe near where he had also seen him that
morning, Milburn was having a beer and had bought him one (which he did not
drink), and that on his own he had inquired of Milburn whether he felt he had been
"drinking too much." 3 We also have it from them that there was no odor to account
for the boy's hours at the cafe, but Bill Mowen, whose supervisory status had been
the subject of this dispute, is quoted by Larry Baum (brother of Rodger, but ap-
parently on opposite sides in organizational preferences) as commenting, when
Milburn emerged from the office after the interview, that "he must have been drinking
because he could smell him all over the shop." (Mowen did not testify.) 4
As indicated, however, we consider preliminarily what the remand adduced in sup-
port of the attack on the integrity of the preparatory interviews the night before the
hearing. The answer is nothing: there was no evidence in support of the assertions
in the motion and all the testimony given was in disproof of them. Respondent con-
tends, however, that Milburns statement in itself constitu.es evidentiary support for
the assertions contained in it, as an exception to the hearsay rule, on the ground
that it is a "declaration against interest." But, where the declarant is neither a party
nor his agent, an indispensable condition to its competence on the basis here urged
is that the declarant be unavailable to testify.5 Here the declarant, Milburn, was
both available as a witness and actually availed of as such by Respondent, which
called him to the stand. To overcome this, Respondent claims constructive unavail-
ability based on Milburn's credulity-taxing protestation ihat he did not recall the
8 Rodger Baum also testified that Milburn told him he had been "uptown" In the interval
between their two meetings, and he even denied that Milburn at their first encounter out-
side the cafe, told him, as Milburn testified he did, that he was celebrating the birth that
morning of his new baby. Yet when President Miller, after ldllburn's call that afternoon,
called Rodger at his home asking him to find Milburn in order to bring him to the office,
he apparently knew just where to find him Rodger Baum's :estimony on the two points
just mentioned is not credited
4 This is all of Larry Baum's testimony that I credit The brothers Baum may be poles
apart in their union allegiances, but they have a common bond in the less than full con-
fidence they inspire in such of their assertions as are uncorroborated. (The hearing officer,
in his report, discredited all controverted testimony whirl Larry Baum had given )
Larry's portrayal of Milburn as having been in a drunken stupor persuades me no more
than does his borther's and the other Respondent's witnesses' description of him as utterly
symptom-free of his wassail.
5 31 C J S 959 (Evidence § 217) ; 20 Am'n Jur. 468 (Eviaence § 556) ; Jones on Evi-
dence (1958) § 313; Sutter v. Easterly, 354 Mo. 282, 189 S.W. 284, 162 A.L.R. 437.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
content of his interview with Respondent 's attorney as embodied in the statement,
and urges this as tantamount to a refusal to testify . However, the proposition which
equates a disingenuous profession of lack of recollection with a refusal to testify-
if it can be said to have yet achieved acceptance at the highest judicial level h-
is in any event inapposite where the witness, as here , has made no such protestation
concerning the events embraced by the statement but, to the contrary , has testified
responsively in regard to them. See supra footnote 6. If Respondent had truly
thought that Milburn was "refusing " to testify in the sense it now claims , one would
have expected some request on its part that the presiding officer directed the witness
to answer responsively in accordance with its present interpretation of that term,
as indeed it was in duty bound to do as a condition to its later standing to urge it-
which it never did.
Milburn's disclaimer of recollection of the statement laid the groundwork for
Respondent 's authenticating the document as the actual statement of the witness,
despite his own failure to sign or otherwise acknowledge it. This Respondent did
through the transcribing reporter. The document then became competent in im-
peachment of Milburn 's testimony at the remand , and entitled Respondent to recall
Milburn for further questioning in the light of that authentication . Yet though
Respondent at the end of Milburn 's examination asked for and was accorded the
right to recall Milburn , and he was expressly directed by me to hold himself in readi-
ness for it, Respondent never did recall him. The condition of unavailability of the
declarant as a witness on the basis here urged was thus never met?
Still another condition to the document 's achieving competency as a declaration
against interest would be the absence of a probable motive in the declarant to falsify .8
On that score , the versions of Milburn and Rodger Baum of their initial talk that
morning of October 8 outside the cafe, strongly indicate a motivation on Milburn's
part to get his job back . About a year earlier , as President Miller testified at the
remand, Milburn had been discharged for "faulty production " after "two or three
warnings " Milburn testified that when he met Rodger Baum the morning of
October 8, he told Baum he wanted his job back, and that Baum-who is not a
supervisor-suggested he call Miller, as Milburn did, later at 3 p in. from the cafe.
Baum testified that the subject of Milburn 's getting his job back was not mentioned;
that the two spoke about where Milburn was now working, and that Milburn said
he was sorry he had "left " Respondent , that he made a "mistake" there, that the
Union had made promises of getting the employees higher wages , on which it never
delivered , and that the night before the hearing everything was "rehearsed " and that
Ganni, organizer for the Union , had told him to understate the number of times Presi-
dent Miller and General Foreman Bedford visited the plant during the second shift
(the one in which Mowen 's supervisory status was in issue ) and that he wanted to
"get even." Baum asked Milburn if he would be willing to make a statement to
that effect, and Milburn said he would , whereupon Baum, from his home, called
Miller, and following the call later made from the cafe by Milburn on his own to
Miller , Baum , as earlier stated ( supra, footnote 3) at Miller's request to find him,
sought Milburn out at the cafe and brought him down . I do not credit Milburn's
testimony that in his call to Miller he said he wanted his job back, and that Miller
said there would be an opening "one of these days ," as against Miller's version
that the youth said he, Larry Baum and John Farmer had "lied" at the hearing.
Nor do I place any reliance on the testimony of Larry Baum that Milburn, when
he saw him at the shop after the interview , said "there might be a job opening
for him." But I do credit Milburn's testimony that he told Rodger Baum at their
first encounter that he wanted his job back . Rodger Baum 's explanation of how
he understood Milburn rather indicates that the lad, in his confused way, was
attributing his regretted termination-which occurred a little over a month after
the hearing 9-to the testimony he had given there . When Rodger was asked to
explain his testimony that Milburn said he regretted having "left " Respondent,
since Milburn had in fact been discharged , and also the reference to the "mistake,"
he testified:
He volunteered that. He told me that he had made a big mistake out there,
that he lost his job, and that , I guess it was over his testimony , I guess that's
why they figured he gave false testimony.
a rx parte Hudgings , 249 U.S. 378 ; Atatter of Michael, 326 U S 224 , 227-228
7lSee G . 3r McKelvey Co v. (Ien'l Casualty Co , 166 Oh St . 401 ; 142 N E . 2d 854,
65 A L R 626
9 See authorities cited supra , footnote 5
9 Miller stated the discharge was a little over a year after Milburn was employed, the
date of which , as established at the representation hearing, was September 11, 1960.
KEENER RUBBER, INC. 921
The above , uttered in the context of regret over having "left" his job , rather in-
dicates that the "mistake" to which Milburn was ascribin g his termination was the
testimony he had given , and that he was seeking to establish his availability for em-
ployment by undoing it. The statement he gave in Respondent 's office later that
afternoon is affirmatively discredited in respect to every assertion therein capable of
objective verification . Thus, Farmer was not at that interview , and after the inter-
view, the group did not go to Sam's or any other join , but dispersed .'° More
importantly-and as will be detailed in the ensuing section-his assertion of what
the truth now was, as opposed to the testimony he was purporting to recant, so far
exceeded Respondent 's own claims in respect to them at the representation hearing,
as to betray an overpowering drive to say what he thought would impress Respond-
ent rather than what he in fact thought to be true. Taken in connection with his
embittered references to the Union 's unfulfilled promises o! higher wages , his denun-
ciation of it as the cause of his economic frustrations (he there alludes to his present
wage of $1.30 an hour, a rate substantially below Respondent's minimum for male
help, as given at the representation hearing ), and his fulsome expressions of a new-
found appreciation of how Respondent had treated him, it would rather appear-
despite his own disclaimer of such a motivation in the statement-that he was
obsessively preoccupied with establishing his desirability for future employment on
terms which , in his confused way, he understood them , tsith a marked obliteration
of a discriminating sense between the real and fancied.
The statement thus failed of achieving competence as in exception to the hear-
say rule, first because of the availability-and here the actual availing-of the
declarant as a witness , and second because of the existence of a probable motive
in the declarant to falsify . The result is that the hearing adduced no evidence in
support of the assertions on which the motion was founded.
Yet, even if the legal barriers to the document 's competency could be said to
have been overcome , there would still be the question of its weight . If its demon-
strated untruths , taken in connection with the boy's mol ive previously discussed,
did not serve to minister to it "its own death wound," li such breath of survival
as might be claimed for it hardly vested it with a credence which could stand up
against all the contrary testimony given on the remand.
Testifying besides Milburn about the interview at the home of the Kannals the
night before the hearing, were Larry Baum , Ganni (who has since left the Union
and works for another one), and Grand Lodge Representative Schmidt. Schmidt
is not a lawyer , but has had long experience in preparing and presenting evidence
at Board representation hearings ( lay representation being permitted under the
Board's Rules and Regulations ), and, pursuant to assignment from the Interna-
tional , he had come in from Cleveland to present the Union 's case. The testimony,
in essence , was that Schmidt did the interviewing , with Gair ii having no participation
except to the extent , as Schmidt described it, of his coming , up with a date of which
he might have personal knowledge ; that Schmidt limited himself to asking the per-
sons present ( the Kannals , Larry Baum , and Milburn , i what they knew; that
none was told by either Schmidt or Ganni what to say, and that Schmidt admonished
them to tell the truth.
Whatever one's reservations about the other witnesses on the remand, whether
the Union's or Respondent 's, one could hardly fail to be impressed with Schmidt.
Though readily acknowledging that he had an advocate 's desire successfully to
present the Union 's side of the issue , and to organize the information given him
most effectively to the position he was to espouse, he also made it clear that he
limited himself to questioning the witnesses concerning such information as they
possessed and cautioned them to stick to the truth. One got the impression that
Respondent's counsel emerged with a wholesome respect for the man in con-
sequence of the dignity and restraint with which he disported himself under ques-
tioning which in its imputations , skirted some delicate areas. And it is noted that
while Respondent 's brief says much in dispraise of Milburn , Larry Baum, and
Ganni , it says nothing in impugnment of Schmidt . Whether or not Respondent in-
tended this implied tribute , it must be said that it was merited . The witness main-
fested a stature inspiring confidence in the integrity of his , account and-by virtue
of the impressive corroboration thus given them-those of the others concerning
the manner and character of the session that night of August 2, 1961, in preparation
11 Ganni testified the only time he visited Sam 's was the night of the election of May 26,
1961, in the company of some union supporters Milburn had apparently effectuated a
mental merger of the two events.
11 N L R . B. v Robbins Tire cE Rubber Company, Inc., 161 F 2d 798, 800 (C A 5).
922 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
for the next day's hearing. Its effect is to discredit the assertions on which the
motion is founded.
The sum of the evidence adduced on the remand is that the interviews, as is
here found, were honestly and properly conducted with no inducement of false
testimony as claimed.12
II. THE REQUESTED REAPPRAISAL OF CREDIBILITY IN THE REPRESENTATION HEARING
A. Preliminary statement
Though the underlying attack on the integrity of the preparatory session of
August 2, 1961, was not sustained and has indeed been repulsed, Respondent never-
theless claims that the remand adduced evidence in impairment of the credibility of
certain witnesses and thus affords warrant for reappraising their credibility at the
representation hearing. In so doing, it relies on the portion of the Board's Sup-
plemental Remand Order of January 3, 1963, stating one of the issues to be
"whether the witnesses who testified as to Mowen's supervisory status in the
representation proceeding may have testified falsely " But in the context of
the prelude to that Supplemental Order as described earlier (supra, footnote
2), and its recital to what "the evidence to be taken in this proceeding shall be
limited" [emphasis supplied], I would have thought that it called for an inde-
pendent demonstration at the remand hearing of the probable falsity of testi-
mony given at the representation hearing; and since this proceeding is analogous
to a motion for a new trial, I would have excepted Respondent, in regard to the
testimony it impugns, to have treated also the matter of "the witnesses' likelihood
that it was a real factor in the outcome of the trial." 13
B. The witnesses impugned
The witnesses in the representation hearing specifically named by Respondent as
having demonstrated their incredibility are Milburn, Larry Baum, and Ganni. The
importance of Milburn is manifest, but it is difficult to understand the significance
Respondent attaches to Larry Baum and Ganni. The report of the hearing officer
shows that their testimony was not a factor in the decision. He expressly refused
to credit Larry Baum and totally ignored the lone item testified to by Ganni, with-
out even resolving the confect between him and President Miller on the point in
question.14 This brings us to Milburn.
' Respondent claims significance for the failure of Larry Baum when called to the office
after Milburn's interview to answer questions concerned with the same subject matter.
As indicated in the ensuing section, the disputed items of his testimony at the representa-
tion hearing were not credited by the hearing officer against Mowen's denial. In explain-
Ing his conduct when called to the office, Baum indicated that he first asked whether this
"was some kind of hearing or some kind of trial " Told It was not, he indicated he chose
to stand mute in an atmosphere which inspired him with less than full trust in Its ob-
jectivity, explaining that "I have been in the office before and asked questions [on] some
other subject. Tried to be made out a liar , so I just wasn ' t going to answer , that's all."
He did 'testify concerning these matters at the remanded hearing.
John Farmer was called into the office 2 days later. The transcribed interview shows a
vigorous denial that he was ever told what to testify to but a refusal on his part to give
Respondent any sworn statement. As later appears, the testimony he gave at the repre-
sentation hearing was admitted by Respondent to be true, and Respondent does not now
impugn its truth. The portion of Farmer's statement Respondent relies on now Is that
purporting to deny he had spoken to Ganni or Schmidt about his testimony before the
hearing, whereas it appears that though he was not at the meeting at the Kennel home
the night before the hearing, he had earlier had an interview alone with Ganni and
Schmidt It would seem rather clear that counsel and he were talking at cross purposes.
The context indicates that Farmer was interpreting the question as one suggesting he had
been told how to testify, and his negative answers are plainly directed toward that
imputation.
la 6 Moore's Federal Pi acticc, par 59 08 (3), pages 3788-3789.
14 Ganni, who testified for the Union solely on rebuttal, claimed Miller had made certain
admissions to him in regard to Mowen's supervisory status-which Miller denied. Larry
Baum testified that Mowen, on two separate occasions, had given warnings which suggested
that he had the power to discharge . The hearing officer, in his report, expressly dis-
credited this testimony, and, In his conclusion , found that Mowen did not possess that or
any other disciplinary power.
KEENER RUBBER, INC. 923
C. Milburn's statement: comparison of his assertions therein with Respondent's own
position at the representation hearing
Respondent's contention is that Milburn's statement alone , taken in connection
with his false disclaimer of recollection of it at the hearing, so far discredits him
as a whole as to discredit also the testimony he gave- at the representation
hearing. That is indeed so in respect to the reliability of his testimony on the remand.
But whether this demonstrates the unreliability of the testimony he gave more than
14 months before October 8, 1962, depends upon whether there is an objective basis
for checking on the truth of his testimony on August 3, 1961, and on the truth of
his recantation on October 8, 1962-as there is. While as appears in the analysis
set forth in the next section, the result reached by the hearing officer rested pre-
dominantly on the interpretation of admitted facts, rather than the resolution of
conflicts over particulars, it also objectively appears that just as Milburn was wrong
in his recital of what happened the night before the representation hearing, so too
was he in wrong in his recantation. He is shown to have ti.-en so, oddly enough, by
the record of the representation hearing itself.
Undermining Milburn's assertions in his purported recantation of October 8, 1962,
is the fact that they exceeded the position Respondent itself took at the representa-
tion hearing. Milburn's October 8 statement embraced three items: (1) the number
of visits made by President Miller and Foreman Bedford to the second shift, where
Mowen's supervisory status was in issue; (2) Mowen's telling Milburn he would
personally see to it that he would not get a raise; (3) Mowen's telling Milburn he
was "boss" of the second shift.
As to (1), the statement recites that the night before the hearing , Milburn told
Ganni that Miller and Bedford visited the shift "every night," and that Ganni told
him not to say that but to say instead that Miller did not visit the plant at all during
the second shift and Bedford only "once in a while," and that he did so testify. To
be noted first is that the hearing officer's report shows him to have accepted Miller's
and Bedford's own testimony concerning the frequency of their visits during the
second shift, and to have made no reference to the testimony of Milburn on that
point . Their testimony, as thus accepted, was to the effect that Miller visited the
second shift three to four, and Bedford two to five, times a week; so Milburn could
hardly have told Ganni, as his statement recited, that they did so "every night." And
his statement that he testified, as he claimed Ganni told him to do, that Miller made no
visits and Bedford did so "only once in a while," is refuted by the record, which
shows that he was neither asked about nor did he testify about Miller, and that as to
Bedford, he admitted to as many such visits by Bedford as three a week-a figure
roughly equivalent to Mowen's estimate of "two or three limes a week, generally,"
and not signally out of line with Bedford's, which the hearing officer accepted in
any event.
As to (2), the statement of October 8, shows the following question by counsel and
answer by Milburn:
Mr. BROWN: What about the statement that was made by you at the hearing
in which you said that three or four weeks before the hearing Bill Mowen had
told you that-quote-"He said he would see to it personally that I would never
get a raise"-unquote. Is this still an accurate statement?
Mr. MILBURN: No sir. He, Bill Mowen and some other fellows were just
kidding around, saying which ones would get a raise. I would say this one-
"You'll get a raise." I said, "Bill, I'll get a raise," and the other fellow said,
"No, I know he'll never get a raise and like that...... [Remainder of answer
unresponsive].
The versions of the above incident as given by Milburn and later by Mowen and
Bedford for Respondent show this was no kidding matter. To the contrary, Mowen
testified that what prompted his statement to Milburn abcut a raise was Milburn's
refusal to push a truckload of material into the vulcanizer because it was "not his
job." Whereupon Mowen, as he testified, upbraided Milburn, saying this was typical
of his failure to apply himself, and that he "would talk to Bud (Bedford)," which
he did. Bedford testified, first, that Mowen recommended Milburn be disciplined
because of it, and then, that Mowen simply reported it to him, after which he
"straightened the boy out." 15 One recalls, in this connection, President Miller's in-
forming us on the remand that Milburn was interveningly discharged after "two or
three warnings" about his work. Since the discharge would appear to have occurred
35 The hearing officer accepted Bedford's first version, that it was a recommendation of
discipline on Mowen 's part.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about 2 months after the raise statement (supra, footnote 9), the incident which
prompted it must have been encompassed in the warnings referred to by Miller. So
Milburn was wrong is disputing on October 8, 1962, the accuracy of his testimony
as given on August 3, 1961: The sworn versions of the incident as given by Respond-
ent's witnesses, likewise on August 3, 1961, confirm the complete accuracy of Mil-
burn's testimony on that day, and expose the flagrant inaccuracy of the altered ver-
sion as given by Milburn for the first time in Respondent's office 14 months later.
As to (3), Milburn at the representation hearing had testified that Mowen, on
being asked by him whether he was "boss" of the second shift, answered he was.
This is the sole disputed portion of the testimony covered by the October 8 statement,
which was credited by the hearing officer. In his October 8 statement, Milburn said
this testimony was not "accurate," and that he had given it because Ganni had told
him to. In view of the demonstrated inaccuracy of every assertion in Milburn's
October 8 statement lending itself to objective verification, there would appear to
he nothing to vest this residual aspect of his recantation with greater credence than
the remainder. To the contrary, the original testimony has strong circumstantial
support. The incident giving rise to Milburn's inquiry, as Milburn described it, was
of a piece with the truck-pushing incident, which Mowen had described. Milburn
and another employee had been discussing the apportionment between them of work
on a truckload of materials, and the other employee, referring to Mowen, said the
"boss" told him the way it should be apportioned. Milburn testified he sought veri-
fication of this from Mowen, and asked him if he was "boss," and that Mowen said
that he was and that division of the work as previously described to him had been
correct. Mowen was not asked about nor did he deny the incident, he having denied
generally that he had ever said he was "boss." Both incidents denote some sense of
accountability on Mowen's part for the employees' performance. As shown in the
analysis appearing in the next section, the issue, as it was posed before the hearing
officer on the evidence, was whether undenied acts on Mowen's part in ostensible
exertion of authority added up to supervisory authority, as the Union claimed, or
were those of a "relay man," which Respondent claimed Mowen to be. But however
it is to be characterized, Mowen's sense of accountability is implicit in his complaint
to Bedford over Milburn's recalcitrance in the truck-pushing incident, and is con-
firmed indeed by an admission by General Foreman Bedford that in the event of
recalcitrancy on the part of an employee to his orders, he questions both the employee
and the "relay man." So it would have seemed natural for one in Mowen's position
to have described himself as "boss" to one with Milburn's less formidable discriminat-
ing faculties in order not again to have to call upon Bedford to "straighten the boy
out."
Transcending what Mowen said about his authority is what his actions and Re-
spondent's actions reasonably conveyed in respect to them. And that brings us to the
manner in which the issue of Mowen's true status took shape on the basis of the
evidence.
D. The nature of the issue on the basis of the evidence and the basis of the hearing
officer's resolution thereof
1. Introductory statement
From what already appears, one can gather that the issue of Mowen's supervisory
status turned not upon what was said but upon what was done-that is to say the
question was the inference to which certain admitted facts lent themselves and the
quality of Respondent's explanation in attempted avoidance of that inference.
2. The admitted facts
Respondent, which manufactures rubberbands, has two departments, a bandroom,
which actually cuts the bands from tubes, and a millroom which performs every
operation preceding the cutting stage, from the mixing of the materials to their
tubing in preparation for the cutting. Involved here is only the millroom, of which
Sterling Bedford is general foreman. The millroom has two shifts, the first one from
6:30 a.m. to 2:30 p.m., and the second one from 2:30 p.m. to 10:30 p.m. General
Foreman Bedford's regular shift is the first, and until the events in 1960 here men-
tioned, the second shift had no supervisor.
From March to June 1960, for the purpose of selecting a supervisor for the second
shift, Respondent rotated for 2-week periods three first-shift employees on the
second shift. These were Mowen, John Farmer, and Jack Hammel, then working
as polers at from $2.08 to $2.11 an hour. The successful contestant was Hammel.
On June 6, 1960, Respondent, as it admitted, made him supervisor of the second
KEENER RUBBER, INC. 925
shift, raising his rate to $2.26 an hour. He continued his production work as poler,
and devoted a portion of his time to his supervisory dut es.
On August 29, 1960, Respondent removed Hammel as supervisor and sent him
back as poler on the first shift. Admittedly, this was because of a complaint made
to President Miller that same day about Hammel's behavior toward Mrs. Phyllis
Kannal. (She testified to a conversation with Miller concerning the matter-denied
by Miller-in which he told her Mowen would replace Hammel as supervisor, and
the matter of the hearing officer's resolution of that dispute in her favor is deferred
while we consider the facts which were admitted.) At the same time that Respon-
dent removed Hammel, it transferred Mowen to the second shift, Mowen working
a double shift on that day. As it had done with Hammel, Respondent raised Mowen
to $2.26 an hour, and like Hammel before him, Mowen divided his time between
regular production work and giving instructions and assignments to the persons on the
second shift-the proportion, as he testified, being 90 pei cent for the first and 10
percent for the second.
Witnesses for the Union testified to action from the start on the part of Mowen in
ostensible exertion of the same authority as Hammel. These need not be detailed,
since what was disputed was not Mowen's actions, but the interpretation of them-
the Union's witnesses testifying that they understood Mowen to be Hammel's suc-
cessor as foreman, but Respondent asserting that Mowen's instructions to the staff
were in the capicity of a "relay man" for the orders of President Miller or General
Foreman Bedford. It is to be noted that the specific matters were testified to-apart
from those recited by Milburn-by witnesses who are not here sought to be impugned.
Testifying to them were Corwin Nichols (who was not claimed by Milburn to have
been present at the session at the Kannals the night before the hearing, and who, at
the time of the representation hearing, was no longer employed by Respondent),
and Farmer, who was mistakenly named as present. Nichols testified that Mowen
"told us what to do and told me not to do certain thing;;." In illustration of the
first, he cited assignments by Mowen to such specific tasks as pushing trucks (like
those involved in the Milburn "raise" incident), sweeping the floor, etc. And in
illustration of the second, he cited instances wherein Mowen had barred him from
the use of the lunchroom (as being reserved for female employees), and from the
use of the telephone to call his home when he had forgotten his lunch (as being
reserved strictly for company business), and as having pas;>ed on a request made by
him to be excused to go home. Farmer testified that after Mowen was transferred
to the second shift, Mowen on occasion called him to work overtime, which he did.
3. Respondent's explanation
The above was not denied , but, as previously indicated , Respondent's explanation
was that Mowen issued his instructions, not in the capacity of a supervisor, but as a
"relay man." President Miller and General Foreman Bedford testified that on the
removal of Hammel on August 29, 1960, they decided to dispense with the super-
visory system and revert to the nonsupervisory system which preceded Hammel's
ascension on June 6, 1960. In support, they stressed such matters as that when
Hammel was made supervisor, Miller and Bedford told him so and posted a notice
to that effect, but that when Mowen came on they told him nothing and posted no
notice; that the work for the day is scheduled in advance by Bedford and when that
is completed the staff does the work scheduled for the next day; that the visits made
by Miller and Bedford to the second shift are enough to make sure matters are run-
ning smoothly; and if anything special comes up, Bedford is called at his home.
As to why Mowen should have been put on the second shift the same time as
Hammel's removal therefrom, and at the same rate, Respondent said both were
sheer coincidence: at about that time, Bedford testified, "vie were having a few fel-
lows leave us, and if I remember right, there was a fellow went on to college and a
fellow that ran the warm-up room mill, and he quit either to go to college or take
another job, and in order to get a good man in the millroom, I put Mowen on the
second shift." It was pointed out that the rate on the "warm-up" job is also $2.26;
which was 2 cents an hour less than that of the warm-up man on the first shift.
President Miller testified that it was specifically the vacancy in the "warm-up man's"
position, which caused Mowen's transfer.
4. The hearing officer's disposition of the issue and his stated basis therefor
In his report, the hearing officer stated that he was "satisfied that Mowen does not
possess such unequivocal indicia of supervisory status as the authority to hire, fire,
layoff, recall, or discharge employees [or to] recommend such action," but that none-
theless he thought it "equally clear from the entire record that Mowen exercises
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some directive authority with respect to the work of the employees on the second
shift," and concluded that "Mowen responsibility directs in a nonroutine manner
the employees on the second shift." In so concluding , he stated:
I am not convinced that, as alleged by the Employer, the transfer of Mowen
to the second shift was merely coincidental with the removal of Hammel from
his foreman 's position.
He followed this was a rationale , which is here reproduced, but, for ease of later
reference, we have inserted a separate number for each reason.
This is so because the record shows, and I find, that [ 1 ] Mowen, upon being
transferred to the second shift, performed the functions of a poler along with his
newly assigned responsibilities , which , in effect, was the identical position
vacated by Hammel , and, at some time subsequent thereto, commenced working
on the warm -up mill . [2] This finding is further supported by the fact as noted
above that on the day Hammel was removed and Mowen transferred to the
second shift he worked a double shift . [3] Also significant is the fact that
Miller informed Phyllis Kannal that Mowen would replace Hammel. [4]
Moreover, although Mowen 's base rate of pay is less than that of John Wyss, the
nonsupervisory warm -up on the first shift , I do not deem this factor to be of con-
trolling significance , since Mowen's rate is identical to that Hammel received
during the time he was admittedly a supervisor . [51 Furthermore, it is clear from
the record that the employees looked upon Mowen as the foreman from whom
they received orders, instructions and directions . [ 6] Mowen's responsible
direction of the employees is further shown by the fact that on the second
shift, for approximately 75 percent of the time , he is the only person present in
the plant with any authority over a total of ten employees who admittedly
have less experience than those on the first shift.
5. The record basis for the facts stated in the hearing officer's rationale
Analysis of the record basis for the hearing officer's rationale illustrates the
predominant role of the admitted facts as against any matter in actual conflict. Thus,
reasons (2) and (4) were admitted facts. Reason (6) was the hearing officer's com-
putation from Respondent 's own account of the number and duration of the visits of
Miller and Bedford on the second shift. Reason ( 5) stated the impression which
the Union's witnesses testified to on the basis of the admitted acts on the part of
Mowen in ostensible exertion of authority over them. Item ( 1) was testified
to under impressively credible circumstances , by Mrs. Kannal . She continued
on the job for but 5 days, beginning with Mowen's transfer , during all of which
time, as she testified, apart from Mowen's "tell [ ing] the men to do different jobs,"
he worked as a poler on her own machine . She first testified to Mowen's production
job in response to Respondent counsel 's inquiry on cross, he having brought that mat-
ter up for the first time, when there had as yet been no indication of how that would
be claimed to bear on the issue . (Farmer, who preceded her, had not been asked
about it ) 16 That Mowen did, in fact , work at poling for a while after his transfer
was not specifically denied by the one person in a position to know-Mowen
himself. Asked pointblank about it by the hearing officer, he replied, "Possibly I did.
I don't recall that I did." Coupled with this was a lack of specificity on the part of
both Bedford and Miller as to the date the vacancy in the "warm-up" position, to
which Respondent attributed the transfer, actually occurred. And transcending this
in any event is the fact , indicated in the ensuing discussion of item (3), that the
question of Mowen 's succession to Hammel 's supervisory functions was independent of
the question of his succession as well to Hammel 's production job.
Concerning item (3): Phyllis Kannal testified that on August 29, 1960, at about
2 p.m. (which is a half hour before commencement of the second shift), she told
President Miller she was quitting because of certain behavior of Hammel, then
supervisor of the second shift, and that Miller asked her not to quit, telling her
Mowen would take over the foreman 's job that same day. Charles Kannal, her
husband, testified that at about 2.30 that same day Miller called him on the tele-
phone at his own place of work and asked him to come over, which he did after
3:30, when his own shift ended; and that Miller "asked me to try and talk my wife
into staying with the Company because she was a good employee ," assuring him that
"there would be a new foreman on that shift beginning that date," and that it would
be Mowen
la Also testifying to Mowen's having poled for a while after his transfer were Larry
Baum and Milburn ( this last not being included in his October 8 recantation ). The hear-
ing officer took note only of Mrs Kannal's testimony on the point
KEENER RUBBER, INC. 927
Miller denied having had any conversation with Mrs. E annal "alone," but testified
that Mr. Kannal came to the plant after 2:30, and "suggested to me that something
was going to have to be done to the second shift," because of the "bad language'
Hammel was using toward his wife. He denied that hm told either of them that
Mowen would replace Hammel, and testified, "I told him, in front of her, that was
something to be taken up between myself and the foreman, which is Bud Bedford,
and I suggested we talk it over together and this is one of the reasons we took him
off the second shift."
The hearing officer made no reference to Mr. Kannal's testimony. (While the
report does not advert to it, it may be presumed that this was because he had damaged
his credibility when on cross-examination, he first denied having spoken about his
testimony with Schmidt and Ganni prior to the hearing, and when admonished he was
under oath, finally admitted it.) But the hearing officer credited Mrs. Kannal's testi-
mony concerning her own conversation with Miller. The established sequence pointed
to the factual accuracy of the statement she attributed to Miller, without regard to
whether he said it, and additionally cast the weight of credibility in favor of Mrs.
Kannal's testimony as to the occurrence of a separate conversation with her and its
content. Had Miller first received the complaint about Hammel's action toward
Mrs. Kannal in his conversation with her husband, as he testified, it would have meant,
since Hammel's removal was prompted by that complaint, that the removal occurred
sometime in midshift; also, that Mowen's transfer too occurred in midshift, (since both
steps concededly were taken the same time), and since he transfer was attributed
to the warmup vacancy, it would have meant that all three events-the removal,
the transfer, and the warmup vacancy-occurred in midshift the same day, a simul-
taneity rather astronomically out of the range of probability. There was neither any
indication nor claim that Mowen put in other than a full ;second shift on August 29,
1960, or that Hammel worked any part of it. The removal of Hammel having thus
occurred immediately before the second shift, and since this was the result of the com-
plaint about his behavior toward Mrs Kannal, the complaint too, would have had to
be made before the second shift, which is when Mrs. Kannal testified she had her
conversation with Miller.
The circumstances thus established the occurrence of the earlier conversation
between Mrs. Kannal and Miller. As to whether he also told her Mowen would
replace Hammel or merely made the noncommittal statement he attributed to him-
self-that was governed by the swiftness and decisiveness of the action admittedly
taken in response to the complaint: Respondent removed Hammel from the second
shift and transferred Mowen thereto, working him a double shift that day. The
fact of the double shift, disclosed by General Foreman Bedford at the tail end of his
extensive testimony, was the key to the issue of whether th-, removal of Hammel was
the cause of Mowen's transfer or was but a "coincidence" thereto.
It has been noted in the previous context that neither Bedford nor Miller gave
a specific date concerning when the vacancy in that position occurred. What
was still more important in this context was that they never testified concerning
when they knew the vacancy would occur. Advance notice of quitting is hardly
an unknown fact in industrial life, and we may assume that men of the caliber
required for the warmup position as described by Bedfoi d would have given such
advance notice; so that Respondent could have arranged for the succession thereto
without requiring Mowen to put in two successive shifts the same day. Assuming
the worst, that the warmup man quit without notice, his fast day on the job would
in any event have been on the Friday preceding August 29, 1960, which was a
Monday, even then permitting prior arrangement for the ;succession without requir-
ing Mowen to work a double shift. Rationally accounting for the emergency
measure which a double shift connoted could only have been a sudden event not
known or foreseen in time to obviate Mowen..-, working the first shift; and only
Hammel's removal met that description. Since, as Respondent explained, a vacancy
in a poler's position was not crucial, and one in a "warm-up" position, though crucial,
could have been met by advance arrangement obviating Mowen's also working the
earlier shift, it would follow that the only occupational void accounting for the
emergency action of a double shift was that created by the removal of Hammel
from his supervisory responsibilities, whatever the production job which was also
entailed.
Taken in connection with the fact that from the start Mowen-ostensibly at
least-discharged a responsibility of a kind, whatever its nomenclature, which only
Hammel had performed and which there is no claim the predecessor warmup man
ever performed, Respondent's actions were calculated to convey the very matter
which Mrs Kannel said Miller had told her in so many words. And in view of
the importance which Respondent attached to her complaint, there would hardly
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been any reason for Miller to have made the noncommittal statement to her,
which was so out of keeping with the unequivocal action so swiftly taken in response
to her complaint.
III. CONCLUSION
The preceding analysis may not have been altogether essential to the conclusion
rather compelled upon us without it: that nothing was adduced effectively to
impugn the integrity of the session of August 2, 1961 , in preparation for the next
day's hearing , and that nothing was adduced to warrant the belief or suspicion that
the decision of the hearing officer either on the ultimate issue or in respect to any of
the underlying evidentiary findings was based in whole or in part on any false
testimony.
Its service to the disposition of this motion was in bringing into focus the es-
sential nature of the issue before the hearing officer as one basically concerned
not with the resolution of conflicting versions of specific events but with the in-
ference warranted by undisputed events and the quality of Respondent 's showing
in its attempted avoidance The inference that Mowen replaced Hammel as sec-
ond shift supervisor , which flowed from Mowen 's transfer , with a raise to Hammel's
rate simultaneously with Hammel 's removal, and Mowen's exercise from the start of
the same ostensible authority as Hammel, was sought to be avoided by the claim that
these were pure coincidences : that the true cause of the transfer was a vacancy
in the "warmup " position , which also paid the raised rate , and that Mowen was
but a "relay man" for his superiors ' orders. As seen, this claim was undermined
first by the fact that in contrast with the precise date and indeed time of day shown
for Mowen 's transfer and Hammel's removal , no such specificity was given for the
occurrence which Respondent offered in competition with Hammel 's removal as the
true cause of Mowen's transfer , and second by Mowen's guarded admission that it
was "possible" that he did perform at the production job of poling after his trans-
fer. And assuming credence to the claim of a concurrence in date among all
three events , there was nothing to explain as a "coincidence" the fact that begin-
ning with his transfer, Mowen apart from his production work-whether of a
poler for a while or of a "warmup" man from the start-discharged responsibilities
toward the employees of a kind which only Hammel performed and which, so
far as appears , the predecessor warmup man had not performed . Lending the coup
de grace to the claim that the transfer of Mowen was but coincidental to Hammel's
removal was the admission by Bedford of the double shift worked by Mowen on
the day of his transfer-an emergency step rationally attributable but to the swift
removal of Hammel in consequence of the complaint made about him by Mrs
Kannal at the time when Hammel's then regular shift was about to begin and
Mowen 's then regular shift was about to end.
As one reads the record , one rather gets the sense of Respondent 's case being
headed for the anticlimax reached by Bedford 's ultimate admission , for one is
struck by the manner in which his assertions and those of Mowen raised more
questions than they answered , were at odds with the probabilities , and frequently
at odds with each other . 17 The result , of course , is to give but incidental significance
to such evidentiary findings as are based upon resolution of conflicts ( and there
were only two such-Milburn's testimony concerning Mowen 's "boss" statement,
and Mrs. Kannal 's concerning Miller's statement in regard to Hammel 's replace-
ment by Mowen ), since it seems rather clear that the result hinged on the rea-
sonable inference flowing from Respondent 's admitted actions and the weakness of
Respondent 's showing in attempted avoidance of that inference . The interesting
point, however, is that the very force of the facts which gave minor significance
to the few items in actual conflict served as well to vest with credence the versions
which were credited by the hearing officer.
It is rather difficult to escape the feeling that a more objective approach on
Respondent 's part to the nature of the issue and the basis on which it was decided,
would have perhaps have spared it from being taken in by the lad, who , it would
17 E g, Bedford ' s insisting others too acted as "relay man " and Mowen ' s testifying that
only he did so; Mowen's statement that he did not know the reason for the rotation of
him and two others from March to June 1960, ending with Hammel 's selection as super-
visor , and Bedford 's admitting it was for the purpose of selecting a supervisor, and at
the same time denying he gave the contestants any supervisory responsibilities for winch
he was testing them ; Bedford ' s insistence that there is not an assignment which Mowen
makes except under his specific instructions, and Mowen ' s admission that he uses his own
judgment-sometimes at least-in regard to assignment for sweeping and pushing of
trucks-the kind of matter involved in his complaint about Milburn.
METROPOLITAN LIFE INSURANCE COMPANY 929
seem rather obvious, had been grinding his own special ax. Forgetting the non-
sense about the jaunt to "Sam's joint ," it is a mystery how its suspicions were not
alerted by at least his new version of Mowen 's statement to him about a raise, since
it was so manifestly out of keeping with the corroboration it had itself given Mil-
burn's testimony on that point at the hearing . And what is still more mystifying
is that with all that it knows now , it should still be urging that statement upon us
as the boy's moment of truth.is
CONCLUSIONS OF LAW
1. There has been no showing to warrant a belief that any of the testimony given
at the representation hearing was suggested by the union representatives or was
the product of any such suggestion.
2. There has been no showing to warrant a belief that any credited testimony
may have been falsely given.
3. There has been no showing to warrant changing the result reached by the
hearing officer or his underlying evidentiary findings.
RECOMMENDED ORDER
On the basis of all of the foregoing , and the entire record , it is hereby recom-
mended that the relief requested in the motion to adduce be denied and that the
same be dismissed for lack of warrant in the evidence or the law.
Is Respondent claims significance for testimony by Rodger Baum to the effect that the
morning after the October 8 interview , Milburn telephoned him to say he had been anony-
mously threatened against going through with his recantation . Milburn categorically
denied this . The credibility register of these two witnesses being about even , there is no
reason to believe one more than the other on that point . But assuming Baum were to be
credited , there is no basis for believing that Milburn was then speaking truthfully to
Baum rather than bowing out as gracefully as he could after more sober reflection upon
his less than responsible utterances of the previous day.
Metropolitan Life Insurance Company and Insurance Workers
International Union, AFL-CIO, Petitioner . Case No. 7-RC-
5269. June 4, 1963
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
Pursuant to the Board's Decision and Direction of Election dated
September 20, 1962,1 an election by secret ballot was conducted by
the Regional Director for the Seventh Region on October 19, 1962,
among the employees in the appropriate unit. After the election, the
parties were furnished with a tally of ballots which showed that, of
approximately 458 eligible voters, 194 votes were cast for, and 234
votes were cast against, the Petitioner. One ballot was void and six
were challenged. The challenged ballots were insufficient to affect the
results of the election. Thereafter, the Petitioner filed timely objec-
tions to conduct affecting the results of the election.
After investigation, the Regional Director, on November 21, 1962,
having found that objections 1, 2A, 2B, 2C, and 2D raised substantial
and material factual issues which could be resolved only after a hear-
ing, directed a hearing be held to resolve the material issues raised by
1 Not published In NLRB volumes.
142 NLRB No. 108.