Kahn's and Company

National Labor Relations Board - Board Decisions

Jun 24, 1981

256 N.L.R.B. 930 (N.L.R.B. 1981)

930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kahn's and Company, Division of Consolidated
Foods Co. and Reginald Akers. Case 9-CA-
3752
June 24, 1981
ORDER DENYING MOTION FOR
RECONSIDERATION
On October 10, 1980, a panel of the National
Labor Relations Board issued a Decision and
Order in the above-entitled proceeding.1 On Octo-
ber 23, 1980, Respondent filed a Motion for Recon-
sideration of Decision and Order. In its motion Re-
spondent contends that the Board erred by finding
that employee Reginald Akers was entitled to rein-
statement as a remedy for Respondent's violation
of Akers' Weingarten2 rights. Respondent also con-
tends that the Board denied it due process of law
by retroactively applying the test established in
Kraft Foods, Inc.,3 for determining when reinstate-
ment is warranted to remedy the violation of Wein-
garten rights.
The Board, having duly considered the matter,
finds that the Motion for Reconsideration of Deci-
sion and Order raises no substantial issues that
were not considered by the Board in its original
Decision and Order. Furthermore, it is clear that
sufficient evidence was adduced at the hearing to
allow the proper application of the test established
in Kraft Foods, Inc., supra, and that Respondent
was not, therefore, denied due process of law.
Accordingly, the Board denies Respondent's
Motion for Reconsideration of Decision and Order
as lacking in merit.
253 NLRB 211.
N.L.R. v. J. Weingarten, Inc., 420 U.S. 251 (1975)
:' 251 NLRB 598 (1980).
256 NLRB No. 147
MEMBER JENKINS, concurring:
As a result of my review of this matter, howev-
er, I conclude that certain clarifications of the
original Decision and Order would be appropriate.
In that Decision the Board disagreed with the Ad-
ministrative Law Judge's finding that the discharge
itself stemmed from the unlawful interview and
thus constituted an independent violation of Sec-
tion 8(a)(1) of the Act; however, the Board also
found that Respondent had failed to established
that its decision to discipline Akers was not based
upon information obtained at the unlawful inter-
view and, therefore, that a make-whole remedy
was appropriate. The apparent conflict between
these two findings is illusory, as can be most clear-
ly demonstrated by reference to the burdens of
proof in the different circumstances.
In order to find an independent violation of Sec-
tion 8(a)(l) of the Act arising out of the imposition
of discipline based upon information obtained at an
unlawful interview, the General Counsel must have
established affirmatively that the tainted informa-
tion was relied on in imposing the discipline. In de-
termining the appropriateness of a make-whole
remedy, however, the burden is upon Respondent
to establish that it did not rely on such information
in imposing the discipline.
In the instant matter, the General Counsel failed
to establish affirmatively that Respondent utilized
the information obtained at the unlawful interview
simply because it did not know that such proof was
necessary. Respondent, on the other hand, went to
considerable lengths to establish that the interview
was unrelated to the discipline in an effort to dis-
tinguish this matter from N.L.R.B. v. J. Weingar-
ten, Inc., 420 U.S. 251. As stated in the original De-
cision and Order, Respondent failed in its effort.