Buddies Super Markets

National Labor Relations Board - Board Decisions

Sep 9, 1976

225 N.L.R.B. 1236 (N.L.R.B. 1976)

1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buddies Super Markets and Edward Thomas Mat-
thews. Case 16-CA-6020
September 9, 1976
ORDER DENYING MOTION
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On April 19, 1976, the National Labor Relations
Board issued a Decision and Order I in the above-
entitled proceeding , finding that Respondent had
violated Section 8(a)(1) of the Act by dismissing Ed-
ward Thomas Matthews.
Thereafter , on June 3, 1976, the Respondent filed a
motion for reconsideration requesting that the Board
reconsider its decision. The General Counsel then
filed a response to the motion and the Respondent
thereafter filed an answer to the General Counsel's
response.
Respondent , stating that the Administrative Law
Judge's Decision , which the Board adopted , assessed
liability on a theory other than that alleged in the
complaint , contends that the record should be re-
opened and that it should now be allowed to "pro-
duce evidence under the Board's new theory of liabil-
ity." We note, however , that Respondent did not
' 223 NLRB 950 (1976)
except to the factual findings upon which the Admin-
istrative Law Judge's Decision was grounded Fur-
ther, Respondent, in its exceptions to that decision,
did not claim surprise by the theory upon which the
Administrative Law Judge's Decision was based but
argued that theory in its brief to the Board.
Respondent's arguments were fully considered in our
decision.
Furthermore, even accepting Respondent's offer
of proof, our conclusion on the merits would be the
same. The offer of proof does not state that previous-
ly unavailable evidence would be offered denying
what was said to Supervisor Matthews by Supervisor
Beauchamp which Matthews then passed on to em-
ployee Ladd. Respondent states only that it would
offer evidence tending to show, inter aha, Ladd's al-
legedly poor work record, the absence of current
union activity by Ladd, and Beauchamp's successful
appeal to retain Ladd. Such proffered evidence
would not affect the theory upon which a violation of
Section 8(a)(1) was found. We therefore find no pur-
pose would be served by reopening the record at this
puncture.
Accordingly, the Board having duly considered the
matter,
It is hereby ordered that Respondent's motion for
reconsideration be, and it hereby is, denied.
MEMBER WALTHER, dissenting:
For the reasons set forth in my dissent in this case,
I would grant the motion for reconsideration.
225 NLRB No. 164