National Paper Co.

National Labor Relations Board - Board DecisionsMar 17, 1953

103 N.L.R.B. 744 (N.L.R.B. 1953)

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL make whole the following named employees for any loss of pay suffered as a result of the discrimination against them : Herbert Youngkin J. R. Foster S. O. Rice GRIFFIN MANUFACTURING COMPANY, Employer. Dated-------------------- By--------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. NATIONAL PAPER COMPANY and ATLANTA PAPER PRODUCTS AND SPE- CIALTY WORKERS, LOCAL No. 527, AFFILIATED WITH THE INTERNA- TIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA, AFL NATIONAL PAPER COMPANY, SOUTHERN DETECTIVES, INC., AND JAMES M. FIER and ATLANTA PAPER PRODUCTS AND SPECIALTY WORKERS, LOCAL No. 527, AFFILIATED WITH THE INTERNATIONAL PRINTING PRESSMEN & ASSISTANTS' UNION OF NORTH AMERICA, AFL. Cases Nos. 10-CA- 1352 and 10-CA-1396. March 17, 1953 Order Denying Motion to Reopen On February 24, 1953, the Board issued its Decision and Order in the above cases,' finding that all three Respondents had engaged in certain unfair labor practices and ordering them to cease and desist therefrom and take certain affirmative action. In that De- cision the Board denied a motion filed with the Board by Respondents Southern and Fier requesting that the Board reopen the case to give Fier further opportunity to be heard. Thereafter, a new motion was filed with the Board by Respondents Southern and Fier request- ing that the record be reopened to receive evidence by Fier relating to the charges made against him, or that the Board, in the alterna- tive, consider an affidavit executed by Fier, attached to the motion, as part of the evidence in the case and "as basis for an additional exception to" the Intermediate Report in this proceeding. The foregoing affidavit, executed December 23, 1952, by James M. Fier, sets forth that at the time of the hearing in the instant proceed- 1102 NLRB 1452. 103 NLRB No. 77. NATIONAL PAPER COMPANY 745 ing from July 14 through 16, 1952, he was "in the Midwest and had no knowledge that the hearing was being conducted and had no ad- vance knowledge that it was scheduled to be conducted during this time," and that he "did not learn of the hearing until after it had been concluded." In that affidavit Fier further denies that he made the telephone calls attributed to him in the Intermediate Report and in the Board's Decision. The Board 2 has carefully reviewed the entire record in this pro- ceeding insofar as relevant, and has determined to deny the instant motion for the following reasons : The statement in Fier's affidavit that he had no advance knowl- edge of the date of the hearing held herein, or of the actual holding of the hearing, is in conflict with the statement of his own counsel on the last day of the hearing. In explaining to the Trial Exam- iner Fier's failure to appear at the hearing, his counsel stated that Respondent Southern had talked with Fier a week or 10 days before, "advising him when and where the hearing would be had," and that Fier "agreed to be subject to call" and that he would come as soon as notified. The same counsel further stated that on the preceding day he had been assured by Fier's wife and by his then employer that Fier was en route to the hearing. Moreover, the Board's records herein show that on April 22, 1952, the Regional Director sent to Fier by registered mail, return receipt requested, copy of the complaint and a notice that the hearing would be held on July 14, 1952, and that the return receipt was signed on April 24, by "Mrs. J. A. Powers"; that on June 17, 1952, the Board received Fier's answer to the complaint, purporting to be signed by him on June 16. It is not denied that Fier's counsel had advance notice of the hear- ing; he appeared at the hearing as counsel for both Southern and Fier. We do not believe that it is too much to require of a respond- ent's counsel that he give his client such advance notice as counsel himself has of the date of hearing so that he may be available to testify during the hearing. If, as Fier's affidavit indicates, his counsel failed to discharge this responsibility, it would not be consonant with sound administrative practice to reopen at this time. The Board having employed a meth- od reasonably calculated to give Fier notice of the date and place of hearing, and his counsel having actually received such notice, the fact, if it be a fact, that Fier himself did not receive such notice is not a sufficient ground in law or policy to grant the instant motion. 2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Mem- bers Styles and Peterson]. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no basis in the record for inferring, nor is it alleged, that Fier's counsel did not have adequate opportunity to transmit to Fier the information in counsel's possession as to the date and place of hearing. The answer to the complaint signed by Fier on June 16, 1952, a month before the hearing, bears the name of his present counsel and was presumably prepared with his aid. Moreover, if, as Fier's counsel stated to the Trial Examiner, Fier was in fact given advance notice of the date and place of hearing, his alleged failure to maintain contact with his counsel during the prog- ress of the hearing can be attributed, upon the present record, only to his own indifference or neglect. Accordingly, whatever view we may take of the matter, we find no adequate basis in the record before us for reopening the case. Accordingly, the instant motion is denied insofar as it requests that the record be reopened to hear Fier's testimony. The alternative re- quest that we consider Fier's affidavit as part of the evidence in the case would require us to treat a sworn statement made out of court as competent evidence that Fier did not make the telephone calls attributed to him. Even if we should receive such an affidavit in evidence, it would be entitled to little weight in the face of the con- trary testimony of three mutually corroborative witnesses given at the hearing and tested by extensive cross-examination. As no useful purpose would therefore be served by granting this alternative re- quest, it is hereby denied. REVLON PRODUCTS CORPORATION and DISTRICT 65, DISTRIBUTIVE, PROC- ESSING AND OFFICE WORKERS OF NEW YORK AND NEW JERSEY, DPOWA - INDEPENDENT , PETITIONER . Case No. 2-RC-5331. March 17, 1953 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Samuel Korenblatt, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 103 NLRB No. 78.