International Union (UAW) v. NLRB, No. 24785.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtWRIGHT, TAMM and ROBINSON, Circuit
Citation459 F.2d 1329
Decision Date25 January 1972
Docket NumberNo. 24785.
PartiesINTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

459 F.2d 1329 (1972)

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 24785.

United States Court of Appeals, District of Columbia Circuit.

Argued November 3, 1971.

Decided January 25, 1972.


459 F.2d 1330
COPYRIGHT MATERIAL OMITTED
459 F.2d 1331
Mr. Elliott C. Lichtman, Washington, D. C., with whom Messrs. John Silard, Joseph L. Rauh, Jr. and George Kaufmann, Washington, D. C., were on the brief, for petitioner

Mr. Steven Kahn, Atty., National Labor Relations Board, of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Messrs. Arnold Ordman, General Counsel at the time the brief was filed, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Herman M. Levy, Atty., National Labor Relations Board, were on the brief, for respondent.

Before WRIGHT, TAMM and ROBINSON, Circuit Judges.

459 F.2d 1332

J. SKELLY WRIGHT, Circuit Judge:

Once in a great while, a case comes before this court which makes one wonder whether the judicial system is still equipped to deal with a litigant determined to frustate the workings of justice. Unfortunately, this is such a case.

It has now been seven years since the United Automobile Workers charged the Gyrodyne Company with an unfair labor practice for discharging some 30 union members at the height of an organizing campaign. For those seven years, the company has persistently refused to release relevant documents within its control which have a vital bearing on the proceedings. These documents have been subpoenaed, and a motion to revoke the subpoena has been denied. The company's case has now been the subject of a lengthy hearing before a trial examiner, two Labor Board decisions, and a decision by this court. The time when an effective remedy for the discharged employees might have been afforded passed years ago. Yet as the case comes before this court for the second time, there has still been no sanction imposed on Gyrodyne for its naked, willful suppression of the documents which could conclusively prove its guilt. If one takes the maxims of equity seriously, then the judiciary should not permit a party to profit from his own wrongdoing. See, e. g., Reynolds v. United States, 98 U.S. (8 Otto) 145, 160, 25 L.Ed. 244 (1878). The time has come to stop Gyrodyne from accruing interest on its investment in intransigence.

I. The Facts

Despite the protracted character of this litigation, the facts are relatively simple. The Gyrodyne Company of America is a defense contractor specializing in the manufacture of helicopters. It employs some 800 workers in its plant in St. James, New York.1 As of 1964, when the events giving rise to the union's complaint occurred, its only customer was the United States Navy.2

Although previous attempts had been made to unionize Gyrodyne,3 the company was without a union when the United Automobile Workers began their organizing campaign in January 1963. The UAW's efforts apparently met with considerable apathy, and they remained low key until January 1964 when an intensive leafleting campaign began.4 On June 3, 1964 the union held its first open meeting, and subsequent meetings were held on June 17 and June 24.5 On June 10 the union announced that it had received enough authorization cards to petition the Board for an election.6

As the union campaign gathered momentum, the company began a course of conduct which ultimately led to the charges of unfair labor practices that are the subject of this litigation. On March 2 and 3, 1964 three Gyrodyne employees who were UAW members were discharged without warning or explanation.7 Then on June 11, one day after the union had announced its plan to petition for an election, Peter Papadakos, president of Gyrodyne, called all employees together for a speech on the company's prospects. Although the exact

459 F.2d 1333
content of that speech and of a subsequent one to the company's production and maintenance employees the next day is hotly disputed, it appears that Papadakos promised to bear a greater part of the employees' medical insurance costs8 and warned against the possibility of a "wall" coming between the employees and their prospects for promotion.9 One week after the second of these speeches, the large-scale discharges began. On June 19, eleven employees were fired, ten of whom were members of the UAW. On June 29, an additional 16 UAW members were laid off, and still another union adherent lost his job on July 1.10

With its organizing efforts frustrated by these discharges, the union abandoned its campaign and sought redress before the Board. The union's principal contention was that the men had been fired for their union activity in contravention of Sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1) and 158(a) (3) (1970). The union argued that the labor cutbacks were unprecedented and that they followed company surveillance of and warnings against union adherents.11 In addition, the union offered testimony by Lieutenant Commander Cletus W. Scheperle, who was naval resident in charge of the Gyrodyne plant, tending to show that Papadakos had a general anti-union bias12 and testimony by Papadakos' wife and father-in-law who claimed that Papadakos had admitted to them that he had fired the men in order to crush the union.13

In defense, the company attempted to discredit a number of the witnesses called by the General Counsel and to demonstrate that some of the individual union members who had been discharged were fired for cause.14 The company's principal contention, however, was that the discharged employees had been caught up in a general cost-cutting program which Gyrodyne had instituted at the behest of the Government.15 President Papadakos testified that he had received letters from President Johnson and Defense Secretary McNamara, similar to those sent to other defense contractors around the time President Johnson assumed office, urging him to cut costs, and that he had responded to these pleas by increasing the efficiency of his plant, thereby necessitating the loss of some jobs.16

In order to meet this "cost-cutting" defense, the General Counsel subpoenaed a number of company records, including the payroll and personnel records of all persons hired or rehired in the company's production departments in 1964. The hiring records were particularly vital since if they showed that the discharged union adherents had been merely replaced it would be obvious that the cost-cutting defense was no more than a sham. But despite the fact that the company's motion to revoke the subpoena was denied by the Board, the records were never produced. Instead, the company chose to parry the General Counsel's repeated requests for the documents at the hearing and to rely solely on President Papadakos' self-serving oral statement

459 F.2d 1334
that the men had not in fact been replaced.17

When the trial examiner handed down his final decision, the company's strategy of noncompliance seemed fully vindicated. The trial examiner chose to credit Papadakos' testimony and accept the costcutting defense.18 He discounted Lieutenant Commander Scheperle's testimony,19 found that Papadakos' father-in-law was an "inept stooge"20 and totally disbelieved Papadakos' wife.21 Although the examiner had indicated during one stage of the proceedings that he might attach an adverse inference to Gyrodyne's defiance of the subpoena,22 he gave no weight to this defiance in his final decision. Instead, the examiner's opinion totally ignores the records in question and the company's failure to produce them. In a four-paragraph opinion, a panel of the Labor Board adopted the trial examiner's proposed opinion and dismissed the complaint in its entirety.23

Thereupon, the union appealed to this court, arguing, inter alia, that the Board had abused its discretion by refusing to draw the usual adverse inference from Gyrodyne's refusal to obey the subpoena. In our first opinion in this case, we held that "the subpoenaed material appears clearly relevant"24 and that "if the adverse inferences were not to be drawn, failure to do so should have been explained."25 We therefore remanded to the Board in order that it might adopt one of three options: (1) explain its failure to draw the requested inferences, (2) draw the inferences and explain the consequences, or (3) require production of the records.26

On remand, the Board issued a notice to show cause why an adverse inference should not be attached to Gyrodyne's continued refusal to produce the subpoenaed records and, if it should draw such an adverse inference, why it should not reverse its initial decision dismissing the complaint.27 After receiving submissions from all parties, the Board issued a supplemental decision "adhering to its original Decision and Order."28 Purporting to adopt the first alternative proposed in our opinion, the Board once again declined to attach an adverse inference to Gyrodyne's conduct and affirmed its decision to dismiss the complaint.29

Although the Board's supplemental decision discusses at length its refusal to draw an adverse inference from Gyrodyne's nonproduction of other, less important,

459 F.2d 1335
documents, it devotes no more than a few concluding sentences to the nonproduction of the vital hiring records. While the Board's discussion of this point is exceedingly terse and elliptical, we think we are able to discern five reasons offered for the failure to draw the requested inference with respect to these records: (1) The trial examiner credited the oral testimony tending to show that none of the laid-off employees was subsequently rehired or replaced and that further terminations had later taken place which were not even alleged to be discriminatory30; (2) the General Counsel and the union refused to use...

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136 practice notes
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...to cross-examine the sources of the allegations at a CSC hearing. See International Union v. NLRB, 148 U.S.App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972) (agency must apply adverse inference rule that party's failure to produce evidence within its control creates a presumptio......
  • Crowley v. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, and Packers, No. 82
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 1982
    ...he was nominated for president. Appellants argue that this testimony and the "adverse inference" rule, International Union, UAW v. NLRB, 459 F.2d 1329, 1335-39 (D.C.Cir.1972) (litigant's failure to produce relevant evidence within its control warrants inference that evidence is adverse to l......
  • Association of Nat. Advertisers, Inc. v. F. T. C., Nos. 79-1030
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1979
    ...presentations. See 44 Fed.Reg. 3496 (1979); note 2 supra. 44 See, e.g., International Union, UAW v. NLRB, 148 U.S.App.D.C. 305, 314-315, 459 F.2d 1329, 1338-1339 (D.C.Cir. 1972); NLRB v. Ship Shape Maintenance Co., 154 U.S.App.D.C. 186, 192, 474 F.2d 434, 440 (D.C.Cir. 45 See note 20 supra.......
  • Hardin v. Norris, Nos. 09-1862, 09-1865.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 20, 2010
    ...Chadbourn rev.1979); 2 Kenneth S. Broun, et al., McCormick on Evidence § 264, at 220-21 (6th ed.2006); see also Int'l Union, UAW v. NLRB, 459 F.2d 1329, 1336 (D.C.Cir.1972) (“Simply stated,” the adverse inference rule “provides that when a party has relevant evidence within his control whic......
  • Request a trial to view additional results
137 cases
  • Doe v. United States Civil Serv. Com'n, No. 78 Civ. 131 (CHT).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 16, 1980
    ...to cross-examine the sources of the allegations at a CSC hearing. See International Union v. NLRB, 148 U.S.App. D.C. 305, 312-317, 459 F.2d 1329, 1336-41 (D.C.Cir.1972) (agency must apply adverse inference rule that party's failure to produce evidence within its control creates a presumptio......
  • Crowley v. Local No. 82, Furniture and Piano Moving, Furniture Store Drivers, Helpers, Warehousemen, and Packers, No. 82
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • May 21, 1982
    ...he was nominated for president. Appellants argue that this testimony and the "adverse inference" rule, International Union, UAW v. NLRB, 459 F.2d 1329, 1335-39 (D.C.Cir.1972) (litigant's failure to produce relevant evidence within its control warrants inference that evidence is adverse to l......
  • Association of Nat. Advertisers, Inc. v. F. T. C., Nos. 79-1030
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 2, 1979
    ...presentations. See 44 Fed.Reg. 3496 (1979); note 2 supra. 44 See, e.g., International Union, UAW v. NLRB, 148 U.S.App.D.C. 305, 314-315, 459 F.2d 1329, 1338-1339 (D.C.Cir. 1972); NLRB v. Ship Shape Maintenance Co., 154 U.S.App.D.C. 186, 192, 474 F.2d 434, 440 (D.C.Cir. 45 See note 20 supra.......
  • Hardin v. Norris, Nos. 09-1862, 09-1865.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • July 20, 2010
    ...Chadbourn rev.1979); 2 Kenneth S. Broun, et al., McCormick on Evidence § 264, at 220-21 (6th ed.2006); see also Int'l Union, UAW v. NLRB, 459 F.2d 1329, 1336 (D.C.Cir.1972) (“Simply stated,” the adverse inference rule “provides that when a party has relevant evidence within his control whic......
  • Request a trial to view additional results

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