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,
Gallup, Inc. and
United Steelworkers of
May 31, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber and
Kirsanow
On May 25, 2001, Administrative Law Judge Richard J. Linton issued the attached decision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions, a supporting brief, and a brief in response.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
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,1 findings,2 and conclusions and to adopt the recommended Order as modified.
The complaint alleged that on May 19, Supervisor Heidi Roberts removed union flyers from the walls of employees’ cubicle walls and desks, and told employees they could not post union literature. However, as the judge found, the record evidence pertained only to other misconduct allegedly committed by Roberts on different dates. Since the General Counsel neither amended the complaint in this respect nor cited any evidence to support the complaint allegation, the judge correctly dismissed it.
ii. june 4 restriction on
distribution
The judge found from the credited evidence that Supervisor Gisela Uria-Ruiz, on June 4, told prounion interviewers that they could only distribute their literature with permission from a supervisor. Their literature was union literature. The judge found this to be lawful on the ground that Uria-Ruiz’s statement “applied to all distributions” and therefore did not constitute disparate enforcement. We disagree and find that Uria-Ruiz’s statement violated Section 8(a)(1) of the Act.
As the judge found, no supervisor had previously told the
Respondent’s employees of any “unwritten” restriction, and the Respondent had
permitted numerous postings and distributions on other matters. In fact, the judge found that distribution
and posting had been “practically unrestricted,” and that “[t]he variety of endeavors [for
which posting was allowed] seems endless,” but that this tolerant policy “changed
once the union literature began to appear.”
The judge also found, without exception from the Respondent, that the
Respondent’s asserted policy restricting distribution and posting “in fact was
newly created in order to suppress the protected activities of the supporters
of the
In this setting, although Uria-Ruiz may not have referred explicitly to “union” literature when she imposed an oral restriction on distribution, she was applying a new and restrictive policy specifically to a union distribution. And as noted above, the Respondent had previously not restricted any nonunion-related distribution or posting. Under these circumstances, we find that Uria-Ruiz disparately enforced the Respondent’s policy against union distributions, in violation of Section 8(a)(1) of the Act. St. Francis Medical Center, 340 NLRB 1370, 1378 (2003) (finding violation where employer prohibited union distributions but did not prohibit nonunion distributions).
ORDER3
The National Labor Relations Board adopts the recommended
Order of the administrative law judge, as modified below, and orders that the
Respondent, Gallup, Inc.,
1. Substitute the following paragraph for 1(e) and re-letter the subsequent paragraphs accordingly.
“(e) Instructing employees not to talk to new interviewers about the union.”
2. Substitute the attached notice for that of the administrative law judge.
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We
will not restrict you from
posting, distributing, or possessing union-related literature, flyers, or notices
anywhere in the
We will not remove or confiscate posted or distributed union-related materials from places where employees may post, distribute, or possess other nonwork related items.
We will not require you to notify a supervisor before distributing union literature at work where no such notification is required before you distribute other nonwork materials.
We will not instruct or request new employees, or trainees, to report to supervision any attempt by other employees to speak to them about union matters as the new employees, or trainees, are working, where the instruction or request does not also extend to other nonwork related matters.
We will not instruct employees that they cannot talk to new interviewers about the union.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
We will, within 14 days from the date of the Board’s Order, rescind all rules restricting you from posting, distributing, or possessing union literature, flyers, or notices in the Houston, Texas office more so than we restrict such posting, distributing, or possessing other nonwork related materials, and contemporaneously with the removal of such restrictions, we will notify you in writing that such rules have been rescinded and that you are free to post, distribute, or possess union-related materials in the same manner that you are free to post, distribute, or possess any other nonwork related items.
We will, within 14 days from the date of the Board’s Order, notify you, especially including new employees, or trainees, that you are as free, during your working time, to talk with other employees about union matters and without notifying supervision of such talk, to the extent that you are permitted to talk about any other non-work related matter without such notification.
Gallup, Inc.
Tamara
J. Gant, Esq. for
the General Counsel.
William
A. Harding, Esq. and Jack L. Shultz, Esq. (Harding, Shultz
& Downs), of
Douglas
P. Fennell, Org. (Steelworkers), of
DECISION
Statement of the Case
Richard J. Linton,
Administrative Law Judge: At the height of the Union’s organizing campaign,
The Assyrian came down like the wolf on the fold,
And his cohorts were gleaming in purple and gold;
And the sheen of their spears was like stars on the sea,
When the blue wave rolls nightly on deep
This is a discharge case.
In the summer of 1999,[2]
I presided at this 16-day trial in
The pleadings establish that the Board has both statutory
and discretionary jurisdiction over Gallup, a
Among its half-dozen services,
“The Gallup Organization as we know it today is the combination
of two great companies which came together in 1987.” (JX 23 at 11)
The two companies were The Gallup Organization and Selection Research,
Inc. (SRI), with SRI acquiring
As of the January 1999 publication of the interviewer training
manual (ITM) (JX 23 at 2),
At its website, www.Gallup.com,
we learn that Gallup’s World Headquarters office is located in Princeton, New
Jersey, and that its North American Operations Center is situated at 301 South
68 Street Place in Lincoln, Nebraska.
Further,
Reliability of its data collection process is of the
utmost importance to
And three pages later the training manual (ITM) declares to the new interviewer (JX 23 at 5):
The “
Remember the part about “the most trusted” name in market research, for when we get to my summary of CEO Clifton’s May 26 speech to the Houston employees, we will see that Clifton uses that asserted reputation as his primary theme in order to emphasize his message.
The complaint alleges that, beginning about May 14, 1999
and continuing to about August 8, 1999, Gallup, by several named (including CEO
Clifton as to his May 26 speech) and unnamed supervisors, engaged in various
coercive acts in violation of Section 8(a)(1) of the Act.
Lynne Zieler – June 22, 1999
Janice Rinehart – June 24, 1999
Sherri Lee – June 30, 1999
Patrick Snyder – August 6, 1999
The organizing campaign to obtain union representation appears
to have been rather brief. From late
April to May 13, 1999, employees Sherri Lee, Lynne Zieler, and others met with
Doug Fennell, the Union’s organizer, and formed an organizing committee of 20
employees. (5:885–886; 6:1023–1025) Before July 1, 1999 (when she became Director
of Latin American Interviewing), Gisela Uria-Ruiz was the Director of Consumer
Interviewing for
The (combined)
As with the other management representatives, Uria-Ruiz’s
title also is called supervisor or manager.
During this early time frame, Uria-Ruiz was the “lead” supervisor. Each of the seven supervisors reports to Director
of Interviewing Jean Timmerman at the corporate office in
As we shall see, “Mission Control” is the designated name for a small area, just outside the break room in the top center section of the floor diagram (RX 38), where a supervisor is located and available for assisting, consulting, and directing. (2:345, Uria-Ruiz; 11:2148, Barlow) A bulletin board (the mission control bulletin board) is located on the outside wall of Supervisor Chad Murray’s office and faces the mission control desk. (15:2976, Murray; RX 38) The mission control bulletin board is about 4 feet high, 8 feet wide, and is divided into eight sections, with one of the sections designated as “Other.” (1:48; 2:346–349, Uria-Ruiz; 3:547, Lambert)
About 30 minutes before a mandatory meeting scheduled by Uria-Ruiz for 5 p.m. on May 14, Lynne Zieler, Janice Rinehart, Sherri Lee, and several other members of the organizing committee entered Uria-Ruiz’s office and, delivering a paper (GCX 49) warning that managers and supervisors should not violate the law, announced the fact of the organizing campaign. (1:37; 5:888–890, 947–950; 6:986–988, 993–994, 1026–1027; 7:1323–1326; 8:1687–1691; 10:1934; 15:3036)
At the 5 p.m. mandatory meeting that May 14, attended by
between 100 and 200 interviewers (6:994, Zieler; 15:3037, Uria-Ruiz), Uria-Ruiz
made an announcement pertaining to the Bellaire closing, and then said that
rumors of some union organizing had now been confirmed, that a group of
interviewers had just informed her that there was an organizing drive in
progress. Uria-Ruiz encouraged employees
to attend any union meetings, to get the facts, and to ask questions. However, Uria-Ruiz made it clear that the
“Union is not what
By letter dated May 16 (RX 5), the Union, by organizer
Doug Fennell, notified Uria-Ruiz and
Throughout the organizing campaign, some employees supported
the
Of the 28 witnesses who testified, 15 were called by the
Government (one, Uria-Ruiz, called under FRCP 611(c), was recalled by
The parties have stipulated (RX 87) to the admission of documents containing corrections for each of the 16 volumes of the transcript (GCX 1 (bbb – rrr); RXs 80-86). (RX 86 apparently supersedes RX 81.) I had indicated (16:3149–3150) that there was no need to correct typographical errors where the meaning or correct word is clear. Moreover, what sometimes, perhaps frequently, appears to be an error is really the reflection of a mispronunciation by the witness, lawyer, or judge. When the meaning is obvious, the printed error ordinarily needs no formal correction. Also, when the name of a witness is misspelled, it need be corrected only once for all such entries. Repeated corrections are unnecessary. The stipulated corrections sometimes go beyond these guidelines. Nevertheless, approving the stipulation (RX 87), I now receive in evidence RXs 80–87. GCX 1(bbb) through (rrr), with (sss) being the index, were received earlier. (16:3171)
The General Counsel filed a motion, dated November 13,
2000, to reopen the record in order to introduce certain additional
documents.
By its March 13, 2001 motion, the Government requests that
I take official notice of an attached (copy of the) 25-page March 7, 2001
decision, JD(ATL)–16–01, of Administrative Law Judge Pargen Robertson in Gallup, Case 16–CA–20442, a case
involving Gallup’s operation in Austin, Texas.
Also for background purposes, I take official notice that the Government has filed a petition for injunctive relief under Section 10(j) of the Act involving the matters in this case. That proceeding, styled National Labor Relations Board v. Gallup, Inc., C.A. No. H-99-4223 in the United States District Court for the Southern District of Texas, Houston Division, is pending before the Honorable Ewing Werlein, Jr., United States District Judge. The parties have advised me that oral argument was set for March 2, 2001 before Judge Werlein, and I have informed counsel of an estimated date for the issuance of my decision in this case.
On the entire record, including my observation of the demeanor
of the witnesses, and after consideration of the post-trial briefs filed by the
General Counsel and by
Findings of Fact
A. Procedural Matters—Tapes, Subpenas, and
Special Appeals
Before the trial opened on November 16, 1999, Gallup served subpenas duces tecum (SDT) on the four alleged discriminatees directing each of them to produce any audio and video tape recordings that they may have made (or be in possession of) at or near Gallup’s place of business between January 1, 1999, and the date [November 3, 1999] of the subpena. As it turns out, audio tape recordings, fitting the description in the SDT, had been made, but they had been turned over to the General Counsel (that is, to the Government’s trial attorney) before the SDTs were served on the four dischargees.
The issue came up shortly after cross-examination had
begun respecting Patrick C. Snyder, the first of the four dischargees to
testify. Following, on request, the
General Counsel’s production of Snyder’s three pretrial affidavits (4:751),
MS. GANT: Your Honor, this witness cannot produce what he does not have, and his testimony cannot be stricken for failure to produce something that is not in his possession.
JUDGE LINTON: Can a witness hide something from evidence by turning it over to, say, his lawyer?
MS. GANT: But, Your Honor, there’s no contention that this witness is hiding something by turning it over to his lawyer. These tapes were given to us before any subpoenas were served on these individuals. There’s no evidence of that [hiding].
JUDGE LINTON: Well, I’ll grant the motion if the tapes are not going to be produced.
Essentially granting Gallup’s motion to strike
(4:787–788), I relied on Bannon Mills, 146
NLRB 611 (1994), and on my analysis that to do otherwise would be equivalent to
permitting a party to hide evidence, in advance of any subpena, by depositing
it with his lawyer as a “King’s X” sanctuary (4:783–784),[6]
something the courts say a client may not do.
I also stated that to take the time for
During the adjournment the General Counsel filed her special
appeal of November 24, and
Responding to
Finally, I report a possibly significant dictum by the Board in its order of March 1. First, recall from Delta Mechanical, Inc., 323 NLRB 76, 77 (1997), that Jencks does not apply to voices of an event in progress captured on a tape recording because such recordings are “direct evidence” of the event and as direct evidence such tapes would be “subject to a subpena duces tecum.” However, in footnote 3 of its March 1, 2000 order, the Board writes:
Although Sec. 102.118 contains a Jencks exception to the requirement for requests for General Counsel’s consent, no party contends that the tapes fall within this exception. [This was clarified in the second order, denying the motion for reconsideration, to state “The Judge found that the rule did not apply, and no party requested special permission to appeal that ruling.”] We therefore do not pass on this issue. However, we note that, in our view, the mere fact that a witness’ statement is made on tape, rather than in a writing, is not per se a basis for excluding it from the Jencks rule.
If all the Board means by its last sentence of footnote 3 is that a witness “statement” submitted, or taken by a Board agent, on a tape recording and describing past events, as distinguished from an event in progress captured on a tape recording, then nothing is new. Clearly that tape recording would be producible under the Jencks rule. But does the context of the entire footnote 3 suggest that the Board is signaling a change? (After all, the tapes here were not statements dictated on tape rather than placed in an affidavit. The tapes here captured voices of events in progress—direct evidence.) That is, by its footnote 3, is the Board indicating that it now disapproves of the cited rule of Delta Mechanical? True, such an indication in footnote 3 would be dictum. But dictum “can be persuasive authority.” Ayoub v. I.N.S., 222 F.3d 214, 215 (5th Cir. 2000).
It seems unlikely that the Board intends, by its footnote 3, to indicate any disapproval of or departure from Delta Mechanical. Overall (and also in light of the Board’s order of May 31), therefore, I interpret footnote 3 as suggesting nothing new, and that its reference to a “statement” on tape simply is a reference to a typical statement that, instead of typed, is dictated (describing past events) onto a tape recording. And such a “statement,” as footnote 3 asserts, is producible under the Jencks rule. As for a tape recording by which a witness has captured, on the tape, voices (audio) or sights and sounds (video) from some event in progress, then that, under Delta Mechanical, would be a tape of “direct evidence” producible under subpena duces tecum. And, per the instant case, make sure that a written request also is made under 28 CFR 102.118. If permission is not granted to produce, then (the Board states in its March 1 order at 2 fn. 4), the presiding judge “should decide any issues flowing from the General Counsel’s response,” such as, presumably, a petition to revoke the SDT.
B. Allegations of Coercion
1. Introduction
Complaint paragraphs 8 through 24 allege coercive acts. Aside from paragraph 23, concerning CEO Clifton’s speech of May 26, most of the paragraphs deal with distributing or posting union literature, and most of the dates are for May 1999.
2. Supervisor Gisela Uria-Ruiz
a. May 14, 1999
(1) Facts
Complaint paragraph 8 alleges that, about May 14,
Following the 5 p.m. mandatory meeting, and with the other supervisors present in her office, Uria-Ruiz called their common superior, Jean Timmerman, at the Lincoln corporate office, and spoke with Timmerman and Jane Miller, director of operations. (2:326–327) When the conference call ended and Uria-Ruiz opened her door, Sherri Lee was there posting a flyer about a union meeting on Sunday, May 16, that Janice Rinehart (JX 18 at 1) had announced earlier at the 5 p.m. mandatory meeting. Uria-Ruiz testified that she told Lee that such distribution was prohibited, that it was not authorized, that “[w]e never had allowed distribution in the office.” (1:48–49; 2:327; 15:3040)
Sherri Lee replied that
The religion flyer (RX 17), announcing nondenominational prayer meetings to begin May 13, apparently was distributed by Michael Lee, an executive interviewer, on May 13. (2:328, Uria-Ruiz) Uria-Ruiz testified that no supervisor approved Michael Lee’s distribution of the religion flyer. (2:327; 15:3041)
Uria-Ruiz testified that before May 27,
Following her consultation with
We have had many questions about distribution of written material by employee’s on matters which do not involve business. There is no change in policy, but this memo is for the purpose of making sure everyone knows the policy.
1. In general—
2. Exception—This right to distribute does not apply to the new interviewer desks.
3. Prohibition—Employees distributing material or literature are prohibited from disrupting employees who are working. If a co-worker is placing a call or otherwise working, you may not interrupt them.
4. Posting—Such material can be posted at your work area or in the break room. It may also be posted on the bulletin board by Mission Control if approved in advance by a supervisor.
We will continue to follow this long-standing policy if it is not abused. Please respect the rights of your co-workers.
Notwithstanding Uria-Ruiz’s testimony about an “unwritten”
policy prohibiting the distribution of nonwork materials in the office work
areas, there is an abundance of testimony that no supervisor had ever told
anyone of such “unwritten” policy.
Moreover, the evidence is that distribution and posting was practically
unrestricted. (3:588, Robinson;
3:608–609, Juneau; 4:685, 687–688, Snyder; 5:895, Zieler; 6:1038, 1041–1042;
7:1334, Lee) A partial exception
existed, at times, when there might be a partial removal of some items posted
by employees in their work cubicles just before a visit by one of
Indeed, Supervisor Uria-Ruiz asserts that she, or other supervisors,
approved much of what was done. Thus,
before the advent of the union organizing in mid-May 1999, Uria-Ruiz approved
postings on
Uria-Ruiz concedes that Girl Scout cookies will always be
sold, but she contends that such is different from someone soliciting for “a
type of business.” (2:351) As to the latter, in addition to Uria-Ruiz’s
rejection of the sale of insurance, mentioned earlier,
But where insurance and Herbalife solicitations for sales
were barred, Janice Rinehart succeeded in obtaining the permission of
Supervisor Douglas Barlow to distribute color flyers (GCXs 52, 53) advertising
water pillows that she and her husband sold in a sideline business that they
operated. Rinehart did not post any of
the copies. (8:1701–1703; 10:1935) This occurred either in 1997 (8:1701,
Rinehart), 1998 (3:606,
The variety of endeavors seems endless. As Patrick Snyder and Sherri Lee describe, there were fundraisers for employees who had cancer (6:1042), or who were otherwise sick (4:682; Nancy Sico in 1998, 6:1043), or who simply needed financial aid (4:682; 6:1042). Several of the supervisors, including Uria-Ruiz, contributed to the collection for one of the cancer victims. (6:1043) Notices were posted on doors and walls as well as in the cafeteria and break room. (4:683)
There also were the usual sales of cars, boats, and furniture with the notices posted on the cubicles of the employees or placed on many of the desks of the other employees. (2:369, Trovato; 4:682, Snyder; 6:1038, Lee)
Last, but certainly not least, we have postings inside the employees’ cubicles. Here by practice, and by policy, the postings were virtually unrestrained—as some of the sexually suggestive photographs in evidence (GCX 26) reveal. On one occasion, in February 1997 (about a month after she was hired), interviewer Catherine Wagley complained to Supervisor Tom Langenegger about a large photo of a woman in a very small bikini. Langenegger told Wagley that the interviewers could post anything they wanted to in their individual booths. (2:431–432, 434–435) The photos in evidence (GCX 26), and the testimony of Supervisor Douglas Barlow (12:2234), confirm Langenegger’s pronouncement.
As the aisleway side of the cubes are open, the postings inside
the cubes are visible to anyone walking by.
(2:434) When a Gallup client was
scheduled to come through on a tour, the interviewers were informed of this and
asked to tidy up their cubes.
(2:320–321, Uria-Ruiz; 2:401, 436, Wagley; 12:2233–2234, Barlow) In practice, this generally meant straightening
up papers and discarding any trash, not removing any photos or other nonwork
items. (2:402, Wagley; 3:522–523, Lambert;
3:634–635,
Although supervisor Doug Barlow agrees that it was the desire
to remove such displays of nudity before any client visit, he concedes that he
never instructed any interviewer to remove any such items. And even though other supervisors have told
him that they have done so, he has no personal knowledge confirming their
reports. (12:2234, 2387) Before May 1999, Supervisor Chad Murray
testified,
In light of the foregoing, and all the record, it seems clear, and I find, that before May 1999, Gallup’s policy and practice was to permit employees to distribute and post, for example, sales of personal items such as cars, boats, furniture, and pets, to announce fundraising drives for needy employees, and to solicit contributions from one and all on behalf of such employees. (Permission was required to post in the “Other” section of the main bulletin board.) As for the individual booths of the interviewers, postings inside such cubes were virtually unrestricted with the sole exception that sometimes, in preparation for client visits, employees would be asked to remove any photos of nudity, or supervisors, on occasion, would remove such photos temporarily, while leaving posted the other nonwork items. However, things changed once the union literature began to appear.
In making the foregoing findings, I also have considered
the fact that the
(2) Conclusion
As Supervisor Uria-Ruiz told Sherri Lee that Uria-Ruiz
would check with
Some additional evidence bears on complaint paragraph 24 (regarding a directive to remove, temporarily, posted union items during a client visit in August). I address complaint paragraph 24 later.
b. May 27, 1999—The distribution memo
(1) Facts
Complaint paragraph 15 alleges:
About May 27, 1999, Respondent issued a memorandum prohibiting distribution of literature at new interviewers’ desks, requiring supervisory notification prior to any distribution of literature at work, and requiring supervisory approval prior to posting literature in the breakroom, at employees’ work stations, and on the bulletin board by “Mission Control.”
By its answer,
At all material times, the Respondent continued to apply its pre-existing policy concerning the distribution of literature and the posting of material and made no exceptions concerning the distribution or posting of either pro-union or anti-union material except that Respondent relaxed its preexisting policy concerning prior approval for distribution of literature after the unauthorized distribution in early May 1999 by employee Mike Lee of certain religious oriented-material. Following such distribution, the Respondent relaxed its policy and only required prior notification for the distribution of non-work-related literature in its facility.
Complaint paragraph 27 alleges that the conduct alleged in
several paragraphs, including paragraph 15, constitutes a violation of Section
8(a)(1) of the Act.
(2) Discussion
Citing (
Respecting the postings, complaint paragraph 15 reflects a misreading of Uria-Ruiz’s May 27 memo in that, as Uria-Ruiz testified (2:318, 345–348), postings at workstations and in the break room are essentially unrestricted. The approval restriction in paragraph 4 (JX 2) pertains to the mission control bulletin board. Crediting Uria-Ruiz’s unrebutted testimony, I find that prior approval has always been required for posting on mission control’s bulletin board in the “Other” section. No evidence was presented that, as in Eaton, such requirement was honored only, or even mainly, in the breach.
Later I address the matter of distributions at the desks of the trainees (new interviewers). As I there find, the evidence is insufficient to show that management ever knowingly permitted distributions at the desks of the trainees. Accordingly, I find no merit to complaint paragraph 15 to the extent it attacks the “Exception” at item 2 pertaining to distributions at the desks of the trainees.
In light of the foregoing, the merit I find to complaint
paragraph 15 is limited to the notification requirement specified in item 1,
“In General,” of
c. June 4, 1999—The disputed “too”
(1) Facts
About June 4, complaint paragraph 20 alleges,
By its answer,
At all material times, the Respondent has adhered to its pre-existing policy concerning the prohibition against distributing any material on new interviewer desks which is not directly related to the orientation process for new interviewers, and made no exception with respect to the distribution of either pro-union or anti-union material.
Up to a point, the parties roughly agree on what happened, and the meeting in question was tape recorded. Unfortunately, there were half a dozen persons in the meeting, and frequently several of them spoke at the same time. That is true of the critical point on the tape.
The event begins about 5 p.m. that June 4 when Eileen Juneau
and a couple of the other members of the
Before we consider the events in Uria-Ruiz’s office,
examine first the union leaflet (GCX 31) that
Present in Uria-Ruiz’s office that June 4 were Supervisor
Uria-Ruiz, Supervisor Chad Murray, and telephone interviewers Eileen Juneau,
Sherri Lee, Janice Rinehart, and Lynne Zieler.
(1:49–50, Uria-Ruiz; 3:628,
There are many differences between the two typed (GCX 44; RX 67) transcript versions. Fortunately, that generally is not a problem because at trial the parties announced that they rely on their transcripts only as to the one critical point in dispute. (10:1944–1947; 15:3053–3055; 16:3139–3144) To my question of what I should do if I could not resolve the disputed point by listening to the tape, the General Counsel replied that, in the absence of the parties utilizing some enhancement system, I would have to rely on the “credibility of the witnesses.” (16:3144)
By my fax to counsel on June 28, 2000, I informed them that I had listened several times to the disputed portion. In relevant part, I informed them:
This morning I played the disputed portion of GCX 45 (GCX 44 at 5; RX 67 at 4), that being the specific line, “To pass around [too].” After several tries, all I can be sure of are the first three words, “To pass around.” Then a lot of fast talking by one or more persons. The “too” may or may not be there. At this point it appears that I will have to rely on the witnesses as to what was said.
A more recent effort yields a result no better than the one described above, although some of the surrounding words can be understood. While some enhancing service might have the technical equipment and ability to separate and slow the voices so as to permit piecing together who said what, without the benefit of that service, the mass confusion of voices on the tape at the critical point causes me not to rely on the tape concerning the disputed “too.”
The disputed point arises in this fashion. As the two transcripts reflect, for the first few minutes the group discusses the reproduction of the union authorization card on the leaflet. Supervisor Uria-Ruiz’s concern was whether the reproduction should have “Void” printed across the face to keep it from being a valid blank card. This appears to be tied to her apparent concern that authorization cards, as a form of solicitation, should not be posted, and that there has to be permission to post. (1:51; 15:3048–3049) Both transcripts then show, in leading into the critical part, that Uria-Ruiz states that she has seen what the (union supporters) are passing around. “No one has come to me and said can we post it/this. And yesterday I asked Heidi [Roberts], did somebody ask you because that’s one of the rules, that they have to ask permission.” (GCX 44 at 4; RX 67 at 4)
The Government’s version contains the “too,” indicating
that permission (as well as notification) is also needed to distribute. (GCX 44 at 5)
Taking the opposite view, that Uria-Ruiz did not say the “too” because Uria-Ruiz
knew full well that permission was not needed to distribute,
The parties stipulated that the next four lines read (16:3139):
Uria-Ruiz: Yes ma’am!
Uria-Ruiz: Okay.
Juneau’s reference to “that memo” is to Uria-Ruiz’s May 27
memo (JX 2), and Juneau is telling Uria-Ruiz that in the May 27 memo Uria-Ruiz
specifically states that permission is required to post (on the bulletin
board at mission control), but that for distribution, only notification
is required. At that point, although the
next line is not in full agreement on the two versions,
According to
Well, I understand that, but you still have to get it approved.
The Government’s version of the transcript has Uria-Ruiz’s response reading (GCX 44 at 6):
I understand that, [and here