Litton Systems, Inc., 208 (1975)

Guidance & Control Systems Division, Litton Systems, Inc.' andInternational Association of Machinists and Aerospace Workers, AFL-CIO. Case 31-CA-4085

March 31, 1975 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND KENNEDY On November 18, 1974, Administrative Law Judge Henry S. Sabin issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.

The Administrative Law Judge found, and we agree, that threats of job reprisal against Albert Nanez made by Supervisor Stephen Victor during an April 15 meeting with the employee were violative of Section 8(a)(1) of the Act. Though our dissenting colleague apparently views Supervisor Victor as a latter day Diogenes engaged in some disinterested search for honesty' and truth, the record is otherwise. Thus, for example, the April 15 conversation between Victor and employee Nanez was not a casual conversation stemming from a chance encounter, but rather a meeting arranged by Victor in his office ostensibly to explain to Nanez why the latter had been,bypassed for promotion. Victor admitted telling Nanez at the beginning of this interview that he had earned a promotion and could still get a promotion. Victor also told Nanez that he, Victor, would 'continue to work to get you a promotion.' Having made it clear to Nanez that his hopes for promotion rested largely on the continuing good will of his supervisor, Victor turned the discussion to the hearing scheduled to resume on April 30, and to the testimony that Nanez would give at that hearing. Victor complained at length that Nanez' testimony, which Victor had reason to believe would contradict the Company's version of events, was 'bugging' him and he 'had to know' how Nanez would testify. In fact, as Victor carefully pointed out to Nanez, if the latter testified in accordance with the statement he had given the General Counsel, 'you are technically calling me a liar and I am the guy that's got to go to bat for you and if i The name of Respondent appears as amended at the hearing you are going to call me a liar, then I am not going to go out and put you in for promotion or anything else.' Thereafter, Victor warned Nanez that he would not be surprised if Nanez was not working for the Company within a year if he did not 'tell the truth as you know it like you have told me and [the company attorney] Mr. Cappadona. ' (Emphasis supplied.) Under these circumstances we are at a loss to understand how our colleague can seriously contend that this case involves nothing more than an employer's right to urge his employee to 'tell the truth' on the witness stand. Nor can we agree with the simplistic conclusion that any statement Nanez may have made in response to Victor's heavyhanded interrogation should be construed as an admission that his testimony against the Company would be a lie. Rather, we would conclude that any such statement, if in fact made, was merely the employee's attempt to mollify his supervisor and to extricate himself, if only momentarily, from a difficult situation.2 I Finally, we disagree with our colleague's contention that although we adopt the Administrative Law Judge's conclusions we are actually finding a violation different from the one he found. The Administrative Law Judge, in finding a violation predicated on Victor's comments to Nanez, specifically relied on Saunders Leasing System, Inc., 204 NLRB 4,48 (1973), wherein the Board concluded that an employer who puts an employee under fear of job reprisal if he fails to testify in accordance with the employer's version of the truth not only interferes with the integrity of the Board's processes but also restrains and coerces the employee in the exercise of his Section 7 rights.3

Here, as even our colleague must ultimately acknowledge, Victor's 'instruction' to tell the truth was combined not only with the phrase 'as you know it like you have told me and Mr. Cappadona' but with explicit threats and warnings as to what would happen to Nanez if he failed to so testify. Few employees would miss the point of such an 'instruction.' 2 Of course, it is not at all certain that any such statement was made.

Nanez denied it and although the Administrative Law Judge generally credited Victor that he did not order Nanez not to testify at all he did not make specific findings as to other details of the April 15 conversation.

Moreover, it is worth noting that the Administrative Law Judge specifically refuted any suggestion that Nanez was fabricating and instead observed that honest differences may be expected when participants in a conversation testify from memory as to what they understood or thought they understood other participants had said or implied during that conversation 3 In Saunders the Administrative Law Judge also pointed out: 'The Act protects the employee against discrimination because he gives testimony under the statute irrespective of whether the employer believes his testimony to be false or whether the ultimate proof sustains the accuracy of the testimony ' 204 NLRB 448 at 452-453

217 NLRB No. 34

GUIDANCE & CONTROL SYSTEMS DIV., LITTON 209 ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent 'Guidance & Control Systems Division,

Litton Systems, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

MEMBER KENNEDY, dissenting:

Unlike my colleagues, I refuse to hold that an employer contravenes the policies of our Act by urging an employee to 'tell the truth' at a forthcoming Board hearing. Accordingly, I dissent from their finding that Respondent violated Section 8(a)(1).

The sole violation found by my colleagues is predicated upon an April 15, 1974, conversation between employee Albert Nanez and his supervisor, Stephen Victor. The conversation pertained to a conflict in written statements Nanez had made to Respondent's counsel and an investigator for the Regional Office about the discharge of David Fatool. When the hearing had originally opened a few months earlier in February, Victor testified on behalf of Respondent. Two days before Victor's testimony, Nanez had given an affidavit to Respondent's attorney (Cappadona) which supported Victor's recollection of the events culminating in Fatool's discharge. After Victor had completed his testimony, Nanez gave a second affidavit to Respondent's attorney and an affidavit to the General Counsel, both of which were inconsistent with his earlier affidavit and at variance with Victor's testimony. Although Nanez did not testify in February, the General Counsel made an offer of proof-in Victor's presence-as to what Nanez would say if permitted to testify. The offer tracked the affidavit which Nanez had given to the General Counsel rather than the affidavit previously given to Respondent's counsel. The offer of proof was rejected and the hearing closed.

The Board thereafter granted a motion to reopen filed by the General Counsel and directed that the hearing be resumed for the purpose of taking additional testimony, including that of Nanez. It was in contemplation of the resumption of the hearing on April 30 that Victor told Nanez to tell the truth.

Victor testified that, during the course of their discussion, he asked Nanez whether he (Nanez) was aware of the fact that the Board hearing had been reopened.

a In contrast to his credibility findings regarding Nanez, discussed infra, the Administrative Law Judge found Victor to be 'an honest and forthright witness' who led him to 'place considerable credence upon [his] testimony as it is believed he was impelled to tell the truth regardless of what consequences might eventuate.' When Nanez indicated that he was not, Victor acknowledged that:

There is one thing that has really been bugging me about this thing and I've got to know that's going to happen. I have got to know your side of the story.

Victor then described the content of the General Counsel's offer of proof made at the hearing and stated:

[I] knew right away that that was contrary to what you had told me and it was contrary to the affidavits that you had given to the company lawyer,

Mr. Cappadona.

Victor then pointed out the discrepancies between the three affidavits given by Nanez. With reference to the affidavit given to the General Counsel, Nanez allegedly replied:

Yeah, I had been a fool to go down there and testify and tell a lie.5 [Emphasis supplied.] Given this acknowledgment, Victor then candidly stated:

Well that's the only thing I am worried about, because if you go down to the courtroom and lie, you are technically calling me a liar and I am the guy that's got to go to bat for you and if you are going to call me a liar, then I am not going to go out and put you in for promotion or anything else.

At this point in the conversation, Victor made the statements which the Administrative Law Judge and my colleagues find violated Section 8(a)(1). According to Victor's account of the discussion:

[I] said, 'That within a year I would not be surprised if you were no longer with the company.' I also said that, 'It's up to you to decide what you want to do. You have to do what you think is right. If you want to go down there and testify, the only thing I ask is that you tell the truth as you know it like you have told me and Mr. Cappadona.' The Administrative Law...