Graham-Windham Services, 1199 (1993)

Graham-Windham Services to Families and Children, Inc. and United Food and Commercial Workers Union, Local 342-50, Health Care and Human Services Division, AFL-CIO. Case 2- CA-24600

November 22, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH

On January 21, 1993, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief and a brief in support of the judge's decision.

The National Labor Relations 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,1 and conclusions and to adopt the recommended Order.2

1. The judge ruled that the Respondent was precluded from using at the hearing any materials which it should have provided the General Counsel pursuant to paragraphs 1 and 3 of the subpoena duces tecum served upon it. Paragraph 1 requested personnel handbooks, rule books, guidebooks, codes of employee conduct and the like, while paragraph 3 requested the Respondent's campaign material. The judge also granted the General Counsel's posthearing motion to strike certain portions of the record relating to the material requested in paragraph 1 of the subpoena duces tecum. The Respondent excepts to all these rulings.

We affirm the judge's rulings pertaining to paragraph 1 of the subpoena. Clearly ignoring the judge's instruction to submit the requested documents to the General Counsel, the Respondent attempted to introduce a purported company employee handbook while cross-examining a witness provided by the General Counsel on the second day of the hearing. Further, even assuming that the judge should not have struck the eight transcript pages because the Respondent was trying to use secondary evidence concerning the material encompassed by paragraph 1 of the subpoena, we observe that any such error would be harmless. The testimony at issue was provided by Supervisor Sadie Oliver and Director Robert Egan, who were specifically discredited by the judge, and by Vice President Stafford, whose testimony about the timing of the distribution of the union flyer by childcare worker Anita Burks was not relied on by the judge. We find it unnecessary to pass on the judge's rulings involving paragraph 3 of the subpoena duces tecum. In this regard, we note that the judge's finding of unlawful disparate treatment by the Respondent of union flyers was not dependent on the presence or absence of the materials sought in the subpoena. Accordingly, the Respondent suffered no adverse consequences because of the judge's rulings.

2. The Respondent argues that the judge's finding that Supervisor Oliver made unlawful promises to employee Askew was improper because it depended on a theory that had not been alleged or litigated. We find no merit in this argument.

Paragraph 7 of the complaint alleges, inter alia, ''[o]n or about August 7, 1990, Respondent, acting through Oliver, at its Hastings-On-Hudson facility, solicited grievances from employees, and implicitly promised to remedy said grievances.'' Child care worker Ruth Askew testified that on August 9, 1990, her supervisor, Sadie Oliver, spoke to her. In that conversation, Oliver promised that the Respondent would give the employees a break, but if the Union came in it would not save their jobs. Oliver also promised that working conditions would improve, indicating that the Respondent would rehabilitate two closed cottages and hire more staff. The record reveals that, through the winter of 1990, Askew had repeatedly complained about poor heating in the cottages and understaffing. The judge found that Oliver's promises violated Section 8(a)(1) by connecting a vote against the Union with better conditions and retention of jobs. Thus, the violation found by the judge was reasonably enco...

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