Rockingham Machine-Lunex Co. v. N.L.R.B., MACHINE-LUNEX

• Decision Date: 08 December 1981
• Docket Number: No. 81-1327,MACHINE-LUNEX,81-1327
• Parties: 108 L.R.R.M. (BNA) 3228, 92 Lab.Cas. P 13,142 ROCKINGHAMCOMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 303

665 F.2d 303

108 L.R.R.M. (BNA) 3228, 92 Lab.Cas. P 13,142

ROCKINGHAM MACHINE-LUNEX COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-1327.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 10, 1981.

Decided Dec. 8, 1981.

Seyfarth, Shaw, Fairweather & Geraldson, Charles C. Jackson, argued, Georgeanne H. Tilson, Chicago, Ill., for petitioner, Rockingham Machine-Lunex Co.

Andrew F. Tranovich, Jerrold Wohlgemuth, argued, Attys., William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., for the N. L. R. B.

Before HEANEY and McMILLIAN, Circuit Judges, and BENSON, ^* Chief Judge.

HEANEY, Circuit Judge.

This matter is before the Court on the petition of the Rockingham Machine-Lunex Company to review and set aside a decision and order of the National Labor Relations Board. The Board has cross-applied for enforcement of its order. It found that Rockingham had violated Sections 8(a)(1), (3) and (5) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. The Board's decision and order is reported at 255 N.L.R.B. 15 (1981).

Rockingham contends that the Board's decision denies the company due process. Initially, Rockingham argues that the administrative law judge (ALJ) used evidence for purposes other than those for which it was admitted. It asserts that the ALJ relied on a transcript of negotiation sessions in finding that the company had refused to bargain in good faith despite his earlier ruling that the evidence would not be used for that purpose. The Board agreed in part with this assertion. It stated:

At the hearing, the Administrative Law Judge ruled that the unauthenticated transcripts of the post-strike negotiation meetings were hearsay evidence but admissible for the limited purpose of showing the "essence" of what occurred at those negotiations. In his Decision, however, the Administrative Law Judge relied on the transcripts to establish the truth of the matters asserted in the transcripts. Notwithstanding his misplaced reliance on the transcripts, the record shows that the facts concerning those meetings were established by Respondent's authenticated notes concerning the meetings.

We agree with the Board's assessment and add that there is other evidence in the record that is more than sufficient to support the Board's findings, particularly the testimony of the company's chief negotiator, James Hodges.

Rockingham also points out that the ALJ ruled that evidence of an employee discharge by the company occurring outside the Section 10(b) statute of limitations period would be admitted solely for "background" purposes. Rockingham argues that despite this ruling, the ALJ subsequently relied on that "background" evidence to find that the company committed unfair labor practices. We agree that the ALJ's reliance was improper. Nevertheless, we are again convinced that the other evidence in the record is sufficient to support the Board's findings.

Rockingham next contends that the ALJ and Board failed to mention or apply the adverse inference rule in violation of the company's due process rights. The rule provides that when a party has relevant evidence within its control which it fails to produce, that failure gives rise to an inference that the evidence is unfavorable to the party. International Union, United Auto Workers v. N. L. R. B., 459 F.2d 1329, 1336 (D.C.Cir.1972).

Rockingham argues that the General Counsel's failure to call as a witness...