Standard Industries, Inc., 93 (1975)

WELSH PLASTICS, LTD.

Welsh Aircraft, Inc., d/b/a Welsh Plastics, Ltd., a wholly-owned subsidiary of Standard Industries,

Inc. and International Union, Allied Industrial Workers of America, AFL-CIO, and Its Local Union No. 454. Case 7-CA-11549

July 11, 1975 DECISION AND ORDER

BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 31, 1975, Administrative Law Judge Arnold Ordman issued the attached Decision in this proceeding. Thereafter, 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.' 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, Welsh Aircraft, Inc., d/b/a Welsh Plastics, Ltd., a wholly-owned subsidiary of Standard Industries, Inc., Vassar, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

i Respondent's request for oral argument is hereby denied since the record, the exceptions, and the brief adequately present the issues and positions of the parties.

2 Respondent's motion for the receipt of additional testimony or admission of the transcript in the Michigan Employment Security Commission hearing held after the hearing in the present case is hereby denied. Respondent contends that such testimony would show that its refusal to execute the contract was not the sole reason for the strike , and that the implementation of the wage portion of the new agreement is not an admission that there was agreement to the entire proposed contract because the increase was granted during negotiations to keep peace and allow it to continue its operations We would find the strike herein to be an unfair labor practice strike whether the sole reason for it was Respondent 's refusal to sign the contract or whether such refusal was a reason for the strike . And we would find a complete agreement had been reached between Respondent and the Union even without reliance upon evidence of implementation.

Additionally, after the close of the hearing, Respondent filed a motion to strike pleadings, order new hearing, censure General Counsel, and disqualification of Administrative Law Judge . We hereby deny the motion as completely lacking in merit. We agree with the Administrative Law Judge that there was no violation of the attorney-client privilege in allowing Bernard Fieger to testify, and that there was no impropriety committed by either the Administrative Law Judge or the General Counsel in this connection DECISION

STATEMENT OF THE CASE I

93

ARNOLD ORDMAN, Administrative Law Judge: Pursuant to an unfair labor practice charge filed on October 31, 1974, by the Charging Party, herein called the Union, General Counsel for the National Labor Relations Board on December 12, 1974, issued a complaint against Respondent. In essence, the complaint alleges that Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to execute a written contract embodying a collective-bargaining agreement which Respondent and the Union had previously made.

The complaint further alleges that a strike engaged in by Respondent's employees, beginning October 16, 1974, was in protest against that refusal and, hence, is an unfair labor practice strike. Respondent's answer to the complaint, dated December 19, 1974, challenges the assertion of jurisdiction over Respondent's enterprise and puts the General Counsel to proof on the major substantive allegations of the complaint.

Hearing was conducted before me on the controverted issues on February 12, 1975. Following the close of the hearing, General Counsel and the Union submitted written briefs. Upon the entire record, my observation of the witnesses, and due consideration of the briefs, I make the following:

FINDINGS AND CONCLUSIONS

Prefatory Statement: The Due Process Issue Before dealing with the jurisdictional and substantive issues here presented, it is appropriate at the outset to rule upon Respondent's claim that it was deprived of due process in the instant hearing by violation of the attorneyclient privilege.

The relevant facts can be succinctly stated. Bernard Fieger, an attorney, not of counsel for the Respondent in this proceeding, was the principal negotiator for management in numerous bargaining sessions with the Union. As noted, General Counsel urges that a collective bargaining agreement was consummated at these bargaining sessions which Respondent later refused to execute. Accordingly,

General Counsel issued a subpena for Bernard Fieger and presented him as its first witness in the prosecution of its case at the instant hearing. Before Fieger took the stand,

Respondent's counsel announced on the record that it was instructing the witness 'not to answer any questions or make available any documents under attorney-client privii Shortly after the hearing opened, under circumstances more fully described hereunder, counsel for Respondent withdrew from the hearing.

I Respondent did not submit a brief but instead mailed a document addressed to the Regional Director for Region 7 of the National Labor Relations Board, the office where the complaint herein originated . The document is entitled 'Motion to Strike Pleadings, Order New Hearing, Censure General Counsel and Disqualification of Administrative Law Judge.' Putting aside questions as to the propriety and sufficiency of this action,

Respondent's motion and a supporting memorandum filed therewith will be considered as a brief for purposes of this proceeding 219 NLRB No. 19 leges.' Fieger then took the stand. Following a few preliminary questions, General Counsel asked Fieger to identify a letter the latter had written on February 26, 1974, to Robert Kellerman, Regional Representative of the Union, stating that the writer had been retained by Respondent to represent it in bargaining negotiations with the Union.

Counsel for Respondent immediately renewed his objection to violation of the attorney-client privilege, indicated that he was prepared to lodge a complaint against the witness with the Bar Grievance Committee and stated that the undersigned was acting improperly in permitting violation of the attorney-client privilege. The undersigned stated his ruling that the particular matter under inquiry, namely, identification of the letter written by the witness to the Union, was not improper, and that no ruling as to other matters was being made. Nevertheless, counsel for Respondent withdrew from the hearing, repeating his objection as to violation of the lawyer-client privilege. Testimony by Attorney Fieger was completed and the hearing was processed to completion with no further participation by Respondent or its counsel of record.

The legal issue posed herein is simple and straightforward. Absent a waiver, an attorney's testimony as to confidential communications between himself and his client is privileged against disclosure , and a proper objection lodged against such disclosure must be sustained. On the other hand, the essence of the privilege is that the communications in question are confidential. Where a third person or persons are present, who are not agents of the client or of the attorney, the essential element of confidentiality disappears. 8 Wigmore, Evidence, '§ 2311 (McNaughton rev.

1961). In the instant case no questions were directed to Fieger and no testimony was given by him relating to private communications or instructions between him and his client nor were any documents sought or produced which were of such a nature. The sole content of the examination of Fieger was the identification and introduction of the letter written by Fieger to the Union stating his role as negotiator for Respondent and the recital of what transpired and what was said and done at bargaining sessions attended by Fieger and other representatives of Respondent together with Kellerman and employee representatives of the Union. The element of confidentiality essential to invocation of the attorney-client privilege is wholly absent. In essence, the question here posed is, as General Counsel phrases it (Brief, p. 5), 'whether a bargaining negotiator who is also an attorney can testify to events equally within the knowledge of union representatives.' Here, no evidence was sought or elicited to which the attorneyclient privilege attached and Respondent's contention in this regard is wholly without merit . See Wigmore, supra. See also N.L.R.B. v. Harvey, 349 F.2d 900, 903-906 (C.A. 4, 1965), and cases and authorities there cited.

We now turn to the substantive issues in the case.

1. JURISDICTION The complaint alleges, the answer admits, and I find that Respondent is a Michigan corporation with its only office and place of businesses in Vassar, Michigan, where it is engaged in the business of providing custom decorating services on parts for the automotive industry. The issue as to whether Respondent does sufficient business affecting interstate commerce to justify the Board's assertion of jurisdiction in this proceeding is, however, sharply contested.

   The complaint, as initially issued, alleged that during the year ending December 31, 1974, Respondent sold and distributed products valued in excess of $60,000 of which products valued in excess of $50,000 were shipped from its place of business in Michigan directly to customers to points outside that state. Pursuant to information received as a result of a pre-hearing subpena served upon...