Michigan State Employees Association d/b/a American Federation of State County 5 MI Loc Michigan Sta, (2016)

Docket Number:07-CA-053541

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Michigan State Employees Association d/b/a American Federation of State County 5 MI Loc Michigan State Employees Association, AFL–CIO and Central Office Staff Association. Cases 07–CA– 053541, 07–CA–060319, 07–CA–060320, 07–CA– 065560, 07–CA–065681, 07–CA–069475, 07–CA– 079382, and 07–CA–081500

August 4, 2016



On March 27, 2013, Administrative Law Judge Keltner W. Locke issued the attached decision. The Respondent and the General Counsel filed exceptions, supporting briefs,1 and answering briefs; the General Counsel also filed a reply brief.2

1 On June 7, 2013, the Board granted the General Counsel’s motion to strike an attachment to the Respondent’s brief.

2 On April 3, 2014, the Respondent filed a motion to reopen the record and a supporting brief, with several attachments, including an attachment that the Board had previously struck. In the motion, the Respondent requests that the Board vacate the judge’s decision and reopen the record to afford it an opportunity to submit further evidence relating to the credibility of witness Benny Poole, who testified at the hearing in the instant matter on August 31, 2012. The General Counsel filed an opposition. We deny the motion for the following reasons. First, the Board’s long-established policy is that it “will not reopen a record so that a party may attack a judge’s credibility resolutions.” See Alta Bates Summit Medical Center, 357 NLRB 259, 260 (2011), and cases cited therein, enf. denied on other grounds 687 F.3d 424 (D.C. Cir. 2012). See also Labor Ready, Inc., 330 NLRB 1024, 1025 (2000) (motion for reconsideration denied to the extent it was an attack on credibility determinations where party sought to introduce new evidence that a key witness lied at the hearing). Unlike the present case, in each of the cases cited by the dissent, the Board was faced with evidence that a witness lied about a material fact, i.e., a fact that establishes or refutes an essential element of an unfair labor practice or a defense. Thus, in Southdown Care Center, 308 NLRB 225, 225–226 (1992), a witness provided the General Counsel with an affidavit recanting her testimony in the unfair labor practice hearing that characterized a group of employees (who were later disciplined for their conduct) as engaging in loud, disruptive, and frightening conduct and blocking her wheelchair. In Inland Container Corp., 273 NLRB 1856, 1857 (1985), the witness testified at the unfair labor practice hearing that the successor employer, which allegedly refused to hire union applicants, used three innocuous criteria in hiring; in answering interrogatories in a federal proceeding, however, it added a fourth criterion: that applicants be willing to work in nonunion workplace. In Lincoln Center for the Performing Arts, Inc., 340 NLRB 1100, 1118 (2003), calendars and weekly reports obtained through discovery in a separate proceeding could have belied a witness’ testimony at the unfair labor practice hearing that the employer called police to have union leafletters arrested. Here, by contrast, the Respondent seeks to intro-

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

duce evidence of perjury that does not refute a material fact, but rather goes to possible bias, and therefore, to the judge’s credibility determinations. Second, the new evidence does not compel a different result. The judge’s finding of unlawful motive does not rely solely on Poole’s testimony; he cited ample additional evidence. Third and finally, the motion was untimely. Sec. 102.48(d)(2) of the Board’s Rules and Regulations states that a motion to reopen must be filed “promptly on discovery of such evidence.” The Respondent asserts that it discovered the new evidence on January 20, 2014, while taking depositions in a state court proceeding concerning employee Audrey Johnson’s discharge. The Respondent obtained related documents on January 29 and on March 14, 2014. Yet, it waited until April 3 to file the motion. The Respondent did not promptly file the motion upon discovery of the new evidence, and it proffers no explanation for its failure to do so. See Precoat Metals, 341 NLRB 1137, 1137 fn. 1 (2004).

Member Miscimarra would grant the Respondent’s motion to reopen the record to permit the Respondent to introduce evidence bearing on the credibility and potential bias of witness Benny Poole, and he would remand the case to the judge to reevaluate Poole’s credibility and neutrality in light of this new evidence and to reconsider all unfair labor practice findings the judge reached in reliance on Poole’s testimony. Attached as an exhibit to the Respondent’s brief in support of its motion is a transcript of Poole’s deposition testimony in a state court action brought by Audrey Johnson, formerly an officer of the Charging Party Union and an alleged discriminatee in this case. The proffered deposition testimony postdates Poole’s testimony in the instant unfair labor practice proceeding. If received and credited, Poole’s deposition testimony would establish that Poole testified falsely in the unfair labor practice hearing. Specifically, Poole’s deposition testimony, if received and credited, would show that Poole testified falsely concerning his residential address. In addition, Poole’s deposition testimony together with other exhibits attached to the Respondent’s brief (but not the exhibit the Board previously struck) would establish that Poole and Johnson were living at the same address at the time of the unfair labor practice hearing. The Board has reopened the record and remanded to the administrative law judge where it appears that a witness may have perjured him- or herself. See Lincoln Center for the Performing Arts, 340 NLRB 1100, 1118 (2003); Southdown Care Center, 308 NLRB 225, 225–226 (1992); Inland Container Corp., 273 NLRB 1856, 1857 (1985) (Although “newly discovered evidence, the effect of which is merely to discredit, contradict or impeach a witness” does not warrant reopening the record, “[n]o tribunal can disregard allegations” of perjury.). Consistent with these precedents, Member Miscimarra believes the record should be reopened to receive this evidence and the judge should reconsider any of his findings that relied on Poole’s testimony. He also believes the majority understates the significance of Poole’s testimony. Poole testified that the Respondent’s president, Kenneth Moore, said to Poole, “You have to help me get COSA”—i.e., the Charging Party Union. The judge credited Poole’s testimony, and this testimony was the basis of the judge’s finding that animus against the Charging Party Union was a motivating factor in several adverse employment actions found by the judge to have violated Sec. 8(a)(3). Unless the judge credited Poole’s testimony, those findings could not be supported. Moreover, unlike his colleagues, Member Miscimarra would find the Respondent’s April 3, 2014 motion to reopen timely. He believes the Respondent reasonably waited to submit its motion until it had obtained everything it wishes to introduce into the reopened record, and the documents the Respondent seeks to introduce include an official record of the State of Michigan dated March 21, 2014—just 2 weeks before the date the motion to reopen was filed.

364 NLRB No. 65


The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,3 and conclusions as modified and supplemented below and to adopt the recommended Order as modified and set forth in full below.4

We affirm the judge’s findings that the Respondent violated Section 8(a)(3) and (1) of the Act by placing employee Audrey Johnson on administrative leave and discharging her5 and violated Section 8(a)(1) of the Act by

3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

There are no exceptions to the judge’s dismissal of allegations that the Respondent violated Sec. 8(a)(3) and (4) by isolating COSA officers or to the judge’s findings that MSEA violated Sec. 8(a)(5) by failing to provide information that COSA requested regarding Fidencio Gonzales’ work and his temporary hire, incoming mail, and the duties of MSEA’s officers.

4 In accordance with our decision in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), we shall modify the judge’s recommended tax compensation and Social Security reporting remedy. We shall modify the judge’s recommended Order and substitute a new notice to reflect this remedial change. We shall modify the recommended Order and notice to conform to our decision in Durham School Services, 360 NLRB No. 85 (2014), and to the Board’s customary language. Makewhole relief for employees who suffered cessation of employment (or, in the case of employees Mary Groves and Clyde Manning, inability to resume employment) as a result of the Respondent’s unfair labor practices shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate...

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