Newburg Eggs, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 14, 2011

03-CA-027834 (N.L.R.B. Jun. 14, 2011)

JD(ATL)–17–11
Woodridge, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
NEWBURG EGGS, INC.
and Cases 3-CA-27834
3-RC-11918
UNITED FOOD AND COMMERCIAL
WORKERS, LOCAL 342
Brie Kluytenaar and Alfred Norek, Esqs.,
for the Acting General Counsel.
Jay Jason and Aryeh Lazarus, Esqs.
(Tarshis, Catania, Liberth, Mahon &
Milligram, PLLC), for the Respondent.
Jonathan Friedman, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
ROBERT A. RINGLER, Administrative Law Judge. On February 7, 2011,1 this
consolidated case was tried in Monticello, New York. On April 27, a decision issued (the
decision), which found, inter alia, that Newburg Eggs, Inc. (the Respondent or the Company)
violated Section 8(a)(1) of the National Labor Relations Act (the Act). The decision, which also
sustained several objections to the Company’s conduct prior to an election, found that such
conduct warranted setting aside the election results and conducting a new election.
In footnote 2, the decision indicated that the Company’s counsel failed to submit a
posthearing brief (the brief). Following the issuance of the decision, it was discovered that the
brief was errantly filed with the Region 3 field office, instead of the Division of Judges. Upon
discovering this error, counsel contacted the office of the Chief Administrative Law Judge, and
asked for the decision to be rescinded and reissued, following due consideration of the errantly
filed brief.
By letter dated May 4, the Chief Administrative Law Judge responded:
I understand . . . your office has been in communication with my Executive
Assistant . . . about the e-filing of your brief in the above consolidated case . . . .
As [the] Judge . . . pointed out in his decision, Respondent did not file a brief with

1 All dates are in 2011, unless otherwise stated.
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the Judges Division. The e-mail confirmation you provided . . . shows that your
brief was improperly filed with Region 3 of the NLRB. The Board's Rules
provide that briefs to administrative law judges must be timely filed with the
Judges Division. And the e-filing instructions on the Board's web-site permit the
e-filer to select the appropriate office with which to file a document. In this case,
the e-filer selected Region 3. The Judges Division never received a copy of the
Respondent's brief, either directly from the Respondent or from Region 3.
It is regrettable that your brief was not considered by [the] Judge . . . , but I am
satisfied that the brief was never properly placed before [the] Judge . . . . I would
note that, pursuant to Rule 102.46 of the Board's Rules, you may file exceptions
to [the] . . . decision with the Board, along with a supporting brief. Any further
questions in this regard should be addressed to the Board, through the office of
the Executive Secretary.
The Company, subsequently, filed a Motion for Reconsideration of Decision with the National
Labor Relations Board (the Board), which was opposed by the other parties to this proceeding.
On May 25, the Board issued the following Order:
The Motion for Reconsideration of Decision filed by Respondent . . . is granted.
Accordingly, this matter is remanded to [the] Administrative Law Judge . . . for
reconsideration of his April 27, 2011 decision after reviewing the . . . brief.
Based upon the entire record, which now includes the errantly filed brief,2 I find that the
decision remains correct and should stand in its entirety. The brief failed to raise any new
matters that were not previously considered. The factual record in the underlying consolidated
cases, which consisted mainly of transcripts of recorded meetings and other documentary
evidence, was essentially undisputed. Moreover, the Company failed to call any witnesses, and
the two witnesses presented by its opposition were highly credible. I find, therefore, that the
brief failed to demonstrate that the findings of fact contained in the decision were flawed, or
should otherwise be revised. I find, furthermore, that the brief failed to cite any legal precedent
or advance any connected argument, which was not previously considered or addressed. I find,
as a result, that the decision should stand in its entirety.3
Dated, Washington, D.C., June 14, 2011
____________________________
Robert A. Ringler
Administrative Law Judge

2 The brief has now been placed in the correct electronic folder.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions,
and recommended Order, which were fully set forth in the decision dated April 27 and are incorporated herein by
reference, 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.