NLRB v. Federal Dairy Company, 5844.
| Citation | 297 F.2d 487 |
| Decision Date | 15 January 1962 |
| Docket Number | No. 5844.,5844. |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FEDERAL DAIRY COMPANY, Inc., Respondent. |
| Court | U.S. Court of Appeals — First Circuit |
Samuel M. Singer, Attorney, Washington, D. C., with whom Stuart Rothman, General Counsel, Dominick L. Manoli, Asst. General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Jules H. Gordon, Attorney, Washington, D. C., were on brief, for petitioner.
John P. Cooney, Jr., Providence, R. I., with whom Allan Seserman, New York City, was on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
This is a petition for enforcement of a Labor Board order. Respondent's five-sentence "Statement of the case" concludes with the following. "No useful purpose will be served in the light of our charges to review with formality the events as though we had received a proper hearing." These charges are that the trial examiner permitted an amendment to the complaint during the hearing (for which a suspension of two weeks was granted respondent) and that the examiner should have accepted respondent's affidavit of personal prejudice. We do not feel that these matters call even for comment. The alleged prejudicial conduct was that the trial examiner stated that respondent's counsel had been "needling" him. Respondent's brief, characterizing this as "a tirade of unjudicial conduct without any parallel in legal procedure," sets the tone of its procedural objections.1 They are without merit.
Respondent takes seriously its asserted excuse for not "reviewing with formality the events," if by "formality" is meant citations to the record. The brief contains a lengthy discussion of the facts, with sometimes two pages at a time without record reference. We have read the 260 printed pages of respondent's record appendix (as well as the additional portions printed by petitioner) and it leaves us with the impression that in many instances the absence of citation was not inadvertent. We are not interested in making our own unaided search of the printed record, and we are particularly not interested in reading those portions of the transcript that were not printed. Shankman v. Aspinook Corp., 1 Cir., 1954, 215 F.2d 902; Esso Standard Oil Co. v. Secatore's, Inc., 1 Cir., 1957, 246 F.2d 17, cert. den. 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46; U.S.Ct.App. 1st Cir. Rule 24(1), 28 U.S.C.A. Nor are we impressed with the underlying argument that the trial examiner is to be condemned because he believed General Counsel's witnesses rather than respondent's. We are satisfied to enforce the Board's order on the basis of the trial examiner's report and the Board's decision without further discussion.
Before leaving this case, however, one matter calls for attention. The General Counsel's principal witness set out to testify, over the objection of respondent, from a typewritten document. The trial examiner first thought it to be an original record. He was encouraged in this misapprehension by the witness, who twice informed him that it had been "prepared days after our meetings with the company." On being pressed for how many days, he finally came out with "several days." It then developed that the only period properly describable as several days was the period between the witness' preparation of what proved to be testimonial notes and the trial. Counsel for the General Counsel then advanced with persistence, making vague references to Massachusetts and New York precedents and inaccurate use of the phrase "past recollection recorded," the totally inapplicable proposition that a witness "has the absolute right to use anything to refresh his recollection."2 Objecting to counsel for respondent's even seeing the paper, and charging him with "deliberately obstructing the flow of testimony," he stated that it was the Board's "normal" procedure for a witness to "use notes prepared precisely for his testimony, although he hasn't testified these notes were, anything to refresh his recollection."
We are frankly shocked. Whether or not a witness may use "anything" to refresh his recollection, there are two prior conditions. The witness should first testify, if there is objection, that the paper does in fact have that effect. Cf. United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 234, 60 S.Ct. 811, 84 L.Ed. 1129; Commonwealth v. Parrotta, 1944, 316 Mass. 307, 55 N.E.2d 456. If it does not, he cannot use it.3 Equally important, the witness, unless opposing counsel waives it, should not refresh his recollection until he has been examined without leading, if it is direct examination, and has testified that his recollection is exhausted.4 Prerequisites to prompting a witness, such as exhaustion of memory, are so axiomatic that they are rarely referred to except in passing. See Commonwealth v. Pike, 1949, 324 Mass. 335, 339-340, 86 N.E.2d 519; cf. Moody v. Rowell, 1835, 17 Pick. 490, 34...
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