National Labor Rel. Bd. v. Adhesive Products Corp.

• Decision Date: 03 July 1958
• Docket Number: Docket 24739.,No. 143,143
• Citation: 258 F.2d 403
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADHESIVE PRODUCTS CORPORATION, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

258 F.2d 403 (1958)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ADHESIVE PRODUCTS CORPORATION, Respondent.

No. 143, Docket 24739.

United States Court of Appeals Second Circuit.

Argued January 15, 1958.

Decided July 3, 1958.

Melvin Pollack, Atty., National Labor Relations Board, Washington, D. C. (Jerome D. Fenton, Gen. Counsel, Stephen Leonard, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Frederick U. Reel, Attorney, Washington, D. C., on the brief), for petitioner.

Samuel Gottlieb, New York City (Harry Giesow and Gainsburg, Gottlieb, Levitan & Cole, New York City, on the brief), for respondent.

Before MEDINA and MOORE, Circuit Judges, and GALSTON, District Judge.

MEDINA, Circuit Judge.

The issues litigated before the Board arose out of a labor dispute involving respondent Adhesive Products Corporation, a relatively small corporation manufacturing adhesives, coatings and related products at 1660 Boone Avenue, in the Bronx, New York City, and three unions. There was an employee's union, Adco Employees Association, with no affiliation outside Adhesive plant, which the Board found on sufficient evidence was not employer dominated, reversing the finding to the contrary by the Trial Examiner. Adhesive's first contract with Adco was signed on September 11, 1947. Over the years the employees had at various times threatened to join an outside union and they used Adco with some ingenuity in their dealings with Adhesive. It is probable that they did the same thing with conspicuous success in the labor dispute now before us for consideration. District 65, Retail, Wholesale & Department Store Union, AFL-CIO, the successful party in these proceedings, started to organize the plant in December, 1954. Two of the twenty employees of Adhesive were truck drivers who, when business was slow, worked in the plant as well as on the trucks. In the midst of the controversy between Adhesive and District 65, Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO, the third union, began picketing the plant, and this interfered with the delivery of Adhesive's products. Adhesive hired an independent trucking company with union-member employees to deliver its goods; the two truck drivers were temporarily laid off, and the pickets were removed. The two truck drivers, Hill and Sollecito, promptly joined Teamsters Local 810, were put back to work, the pickets did not return, and Adhesive later entered into a contract with Local 810. The arrangement with the independent trucking company was terminated. Adhesive then negotiated a new contract with Adco, with additional benefits and increased wages for the workers; and District 65 was left out in the cold. The period of time involved is from December, 1954 to and including early February, 1955.

The gist of the charges against Adhesive is that it refused to bargain with District 65 after it knew that practically all the employees had signed up with District 65; that it discouraged the employees from remaining with District 65 by claiming that it was a communist union, and by offering wage increases and improved working conditions if they reactivated Adco; that it interfered with the reactivation of Adco and contributed financial and other support to it; and that Local 810 was brought into the picture through the connivance of Adhesive as a means of weaning the men away from District 65; all in violation of Section 8(a) (1), Section 8(a) (2), Section 8(a) (3) and Section 8(a) (5) of the Act, 29 U.S.C.A. Sections 158(a) (1), (2), (3) and (5). All these charges were sustained, except that Adco was found not to be employer dominated, as above stated, and the order we are asked to enforce directs Adhesive to cease and desist from assisting Adco and Local 810, or recognizing them as representatives of any of its employees until after it has complied with the terms of the order requiring Adhesive to bargain with District 65, and unless and until Adco or Local 810 has been certified by the Board as representative of the employees or any of them. The order also nullifies the existing contracts with Adco and Local 810 and directs Adhesive to bargain with District 65 and reimburse each of its employees in a sum of money equal to what has been checked off as dues to Adco or Local 810.

In order to apply the legal principles hereafter discussed we have examined the entire record which discloses "substantial evidence on the record considered as a whole" to support the charges and the order, except for the direction to pay back the dues checked off for Adco, but the case turns on certain issues of veracity between Maury T. Medwick, Adhesive's president, and the union organizer for District 65, Morris Doswell and Philip Vicinanza, a type of professional union organizer, who sought and obtained employment as an ordinary worker for Adhesive but spent considerable time and effort in stirring up the employees and backing up the efforts of Doswell. Vicinanza was later discharged. Except for the matter of repayment of dues to members of Adco, which we shall discuss later, we have concluded that there must be a reconsideration of the issues by the Board, in the light of further testimony by Doswell and Vicinanza, and any other witnesses the Board or the Trial Examiner may wish to hear. This is because there was a clear and wholly unwarranted curtailment of the cross-examination of Doswell and, while the rulings on the cross-examination of Vicinanza were technically correct, Adhesive may wish to apply to the Board for certain relief and seek further examination of Vicinanza. In view of this conclusion, which is in accord with that arrived at by the Circuit for the District of Columbia in Communist Party of United States v. Subversive Activities Control Board, 102 U.S.App.D.C. 395, 254 F.2d 314, we find it not necessary to review the testimony in detail.

Although eight Adhesive employees also testified at the hearing, all called on behalf of petitioner, their testimony did little to clear up the conflicting statements made by Doswell, Vicinanza and Medwick since their recollection of the events of December, 1954 and January, 1955 was vague and uncertain. In addition, it is apparent from the transcript of the hearings that they attempted, whenever possible, to support their employer's position, and, in so doing, often had to contradict sworn statements given to an NLRB investigator. While their conflicting testimony could possibly be viewed as corroboration of Doswell's version of his dealings with Medwick, it also appears that many of the statements the men gave to the investigator were based on what Doswell had told them had transpired when he said he met with Medwick. Accordingly, in the last analysis, the case against Adhesive rested on the testimony of Doswell, as supported by Vicinanza, and the credibility of these two witnesses was a vital issue at the hearing.

We turn to the points urged by respondent as a basis for denying enforcement of the Board's order. Adhesive argues that a written statement submitted by Vicinanza to petitioner's counsel should have been made available at the hearing upon request, once the witness acknowledged that he made such a statement, to be used as a basis for impeaching the witness's credibility. The examiner refused to direct the production of this statement because of the Board's rule which provides that "(n)o * * * attorney * * * or other officer or employee of the Board shall produce or present any files, documents, reports, memoranda, or records of the Board * * * whether in answer to a subpena, subpena duces tecum, or otherwise, without the written consent of the Board or the chairman of the Board if the * * * document is subject to the * * * control of the Board; or the general counsel" if the document is subject to its control. NLRB Rules and Regulations § 102.87, Series 6, 16 F.R. 1934, 1947, 1948, as amended at 17 F.R. 4983. Despite this rule, respondent made no effort to obtain the necessary permission for the production of Vicinanza's statement. Since respon...