Boilermakers Local 374 (Phillips Getschow Co.)

National Labor Relations Board - Board Decisions

Mar 31, 1995

316 N.L.R.B. 994 (N.L.R.B. 1995)

994
316 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See Plumbers Local 195 (Stone & Webster Engineering), 237
NLRB 931 (1978); Plastic Film Products Corp., 232 NLRB 722
(1977).
2 In Goodyear Tire & Rubber Co., 312 NLRB 674 (1993), cited
by Judge Beddow in his decision, it is apparent that the General
Counsel filed written responses to the respondents’ motions for dis-
missal of the complaint, thereby allowing the General Counsel a suf-
ficient opportunity to argue the merits of his case before the judge.
3 Cf., the Board’s experimental modification of Sec. 102.35(j), Sec.
102.42, and Sec. 102.45(a) of the Rules and Regulations, effective
Feb. 1, 1995. See 59 Fed. Reg. 65942 (1994).
4 On our examination of the entire record, we are satisfied that the
General Counsel’s assertions concerning the judge’s bias and preju-
dice are without merit. Therefore, the General Counsel’s request for
a new trial before a different judge is denied. The Respondent’s mo-
tion to strike the General Counsel’s exceptions and brief is also de-
nied because, although they do not conform exactly to the require-
ments of Sec. 102.46, they are not so deficient as to warrant striking.
Finally, we find no merit in the Respondent’s contention that the
General Counsel did not comply with Sec. 102.27. Whether the Gen-
eral Counsel’s papers filed with the Board are treated as a request
for review under Sec. 102.27 or as exceptions and brief under Sec.
102.46, they were timely filed in relation to the issuance of the
judge’s Sept. 13, 1994 decision.
5 Nothing herein should be construed as a comment on the merits
of the case, including the judge’s other procedural rulings or the
merits of the Respondent’s Aug. 26, 1994 motion to dismiss the
complaint.
Local No. 374, International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forg-
ers, and Helpers of America, AFL–CIO (Phil-
lips Getschow Co.) and Robert W. Little. Case
25–CB–7322
March 31, 1995
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On September 13, 1994, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision, in
which, inter alia, he confirmed his ruling at the hearing
that the Respondent’s motion to dismiss the complaint
should be granted. The General Counsel filed excep-
tions and a supporting brief, and the Respondent filed
a brief answering the General Counsel’s exceptions.
This Order, which remands the proceeding to the
judge, pertains only to the procedural issues raised by
the General Counsel’s exceptions and the parties’
briefs.
The complaint alleges that the Respondent violated
Section 8(b)(1)(A) and (2) of the Act in the operation
of its hiring hall by failing to refer individuals who
had complied with the established rules and procedures
for referral while referring individuals who had not.
On August 26, 1994, at the close of the hearing, the
Respondent moved orally to dismiss the complaint in
its entirety for lack of evidence in support of the alle-
gations. The judge permitted the General Counsel to
make a brief oral response, and then, granting the mo-
tion, he dismissed the complaint from the bench. The
General Counsel requested, in effect, to file a
posthearing brief, and the judge rejected the request.
On September 13, 1994, the judge issued the written
decision referred to above, which substantiates his oral
dismissal of the complaint on the basis of his finding
that the General Counsel failed to establish a prima
facie case.
In his exceptions, the General Counsel asserts that
the judge’s oral dismissal of the complaint and his
written decision do not conform with Sections 102.42
and 102.45 of the Board’s Rules and Regulations con-
cerning, respectively, the filing of posthearing briefs
and required contents of judges’ decisions. The Gen-
eral Counsel also contends that the judge erred by fail-
ing to allow him sufficient time to review subpoenaed
records, by rejecting his motion to amend the com-
plaint, by rejecting evidence proffered by the General
Counsel, and by admitting purported hearsay evidence
proffered by the Respondent. The General Counsel re-
quests a new trial before a different judge because of
the assertedly prejudicial nature of the judge’s conduct
set forth above.
In opposing the General Counsel’s exceptions, the
Respondent contends, inter alia, that both the excep-
tions and the General Counsel’s brief should be strick-
en for failure to conform with Section 102.46 of the
Rules and Regulations, and that the General Counsel
failed to comply with Section 102.27 following the
judge’s grant of the Respondent’s motion to dismiss
the complaint.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Based on our careful review of the record and eval-
uation of the relevant circumstances, we find that the
judge erred in failing to give the General Counsel an
adequate opportunity to file a posthearing brief under
Section 102.42,1 opposing the Respondent’s motion to
dismiss the complaint and arguing the General Coun-
sel’s position regarding the merits of the case.2 As
Section 102.42 provided at all times relevant to this
case,3 the filing of briefs was a matter of right. Ac-
cordingly, we shall remand this proceeding to the
judge who shall afford the parties a reasonable time
within which to file posthearing briefs.4 Thereafter, the
judge shall issue an appropriate decision as ordered
below.5
It is ordered that this proceeding be remanded to
Administrative Law Judge Richard H. Beddow Jr. for
further appropriate action as set forth above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision set-
ting forth the resolutions of all credibility issues, find-
ings of fact, conclusions of law, and a recommended
order, in accordance with this order of remand. Fol-
995BOILERMAKERS LOCAL 374 (PHILLIPS GETSCHOW CO.)
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 A request for review of this Order may be filed pursuant to Sec.
102.27 of the Board’s Rules and Regulations.
lowing service of the supplemental decision on the par-
ties, the appropriate provisions of the Board’s Rules
and Regulations shall be applicable.
Walter Steele, Esq., for the General Counsel.
Michael J. Stapp, Esq., of Kansas City, Kansas, for the Re-
spondent.
DECISION AND ORDER DISMISSING COMPLAINT
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Evansville, Indiana, on August 25 and
26, 1994. The proceeding is based on a charge filed June 16,
1993, and the Regional Director’s complaint dated July 30,
1993, which alleges that the Respondent Union violated Sec-
tion 8(b)(1)(A) and (2) of the National Labor Relations Act,
‘‘Beginning on or about April 14, 1993,’’ by failing to refer
certain individuals registered in its Evansville, Indiana area
hiring hall or otherwise acting in accordance with established
rules.
During the course of the hearing the General Counsel
sought to amend the complaint to allege that the violations
began on April 1 in lieu of April 14. The Respondent ob-
jected and the amendment was not allowed.
The General Counsel rested his case at approximately 4:30
p.m. on August 25, and the Respondent presented its evi-
dence the next day. Following the presentation of several re-
buttal witnesses by the General Counsel the parties were
asked if there were any closing matters and the Respondent
made a motion that the matter be dismissed. The General
Counsel was given the opportunity to respond and, on due
deliberation, Respondent’s motion was granted and it was
orally announced that the complaint was dismissed.
In a case of this nature the General Counsel is required
to show that the union violated its duty of fair representation
with regard to workers registered under its joint referral (hir-
ing hall) rules, see Boilermakers Local No. 374 v. NLRB, 852
F.2d 1353 (D.C. Cir. 1988), a case involving this same local
union and cited to the parties, which upheld the Board’s De-
cision in Boilermakers Local 374 (Combustion Engineering),
284 NLRB 1382 (1987).
The record here shows that the alleged discriminatees had
less than the 6000 hours’ qualifying experience required to
be on the applicable joint referral rules ‘‘A’’ and ‘‘B’’ list,
that they were on the ‘‘C’’ list and called on April 14, and
were referred on April 15 to work at the Phillips Getschow
Co. jobsite. Inasmuch as no arbitrary or discriminatory action
is shown on or after the dates alleged in the complaint there
is no evidence to support the allegations of the complaint.
The General Counsel was allowed to inquire about events
occurring between April 1 and 14 and nothing in this exam-
ination or in the record as a whole establishes anything that
would show that the Union’s joint referral rules are improper
or that the Union applied these rules improperly or in an ar-
bitrary or discriminatory manner, or that the workers were
not adequately informed of the relevant rules. Accordingly,
I find that even if events which occurred prior to the critical
date in the complaint were considered as more than back-
ground evidence, they would not support the allegations of
the complaint.
In this connection it is noted that highly credible testimony
was given by a union International representative (who had
been assigned as Trustee of Local 374), which showed that
he had administered the rules properly, as well by the two
top officials (for the Union and for the employers’ associa-
tion), of the applicable joint rules and standards committee
who were highly knowledgeable concerning the history and
propriety of the referral rules established in the collective-
bargaining agreement.
In contrast, the General Counsel’s witnesses offered little
more than speculation about their observations or feelings
and provided no substantial evidence that could support a
finding that there was a violation of the Act.
The General Counsel was advised that I had planned to re-
quest him to review the transcript and overall record with a
view towards requesting dismissal of the complaint, and that
in view of Respondent’s motion I believed a dismissal of the
complaint in response to that motion would be consistent
with the purposes of the Act, with the applicable law and
with the appropriate utilization of the resources of the Board
and of the parties.
Accordingly, I hereby document my ruling at the hearing
and I conclude that the General Counsel has failed to dem-
onstrate a prima facie case with respect to the entire com-
plaint and I confirm my ruling that the Respondent’s motion
should be granted and the complaint be dismissed. Compare
the procedures in Goodyear Tire & Rubber, 312 NLRB 674
(1993).
CONCLUSION OF LAW
The Respondent is not shown to have violated the Act as
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent’s motion is granted and the complaint is
dismissed in its entirety.2