The Center For United Labor Action

National Labor Relations Board - Board Decisions

Mar 20, 1974

209 N.L.R.B. 814 (N.L.R.B. 1974)

814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Center for United Labor Action and Sibley,
Lindsay and Curr Company
The Rochester Joint Board of the Amalgamated
Clothing Workers of America, AFL-CIO-CLC
and its Agent, The Center for United Labor Action
and Sibley , Lindsay and Curr Company. Cases
3-CC-808 and 3-CC-8 10
March 20, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On January 10, 1974, Administrative Law Judge
Herbert Silberman issued the attached Order Dis-
missing Complaint in the above-entitled cases.
Thereafter, the General Counsel and the Charging
Party filed exceptions and briefs, and the Respon-
dent, The Rochester Joint Board of the Amalgamat-
ed Clothing Workers of America, herein called
Respondent ACWA, filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached order in light of the exceptions and briefs
and makes the following findings:
The Administrative Law Judge dismissed the
complaint for two reasons: first, because, in his
opinion, the complaint failed to comply with the
requirements of Section 102.15 of the Board's Rules
and Regulations that it contain a "clear and concise
statement of the acts . . . claimed to constitute
unfair labor practices," and, second, because the
General Counsel refused upon direction by the
Administrative Law Judge, pursuant to Section
102.35(1) of the Board's Rules and Regulations, to
file a written prehearing brief outlining the theory of
the General Counsel's case. Contrary to the Adminis-
trative Law Judge, we find that neither of these
reasons warranted dismissal of the complaint.
As to the first ground for dismissal, an examination
of the complaint reveals that it contains a clear
statement of the acts alleged to constitute unfair
labor practices and the sections of the Act alleged to
have been violated. In addition, the record contains a
detailed opening statement by the General Counsel
outlining the theory underlying the complaint allega-
tions, and hence the unfair labor practices allegedly
committed by the Respondents, together with rele-
vant case law in support thereof. Furthermore, we
note that the Administrative Law Judge denied a
motion by Respondent ACWA to dismiss the
complaint for failure to comply with Section 102.15
of the Board's Rules and Regulations. This we view
as being entirely inconsistent with his subsequent
dismissal of the complaint for the same reason.
Accordingly, we find no basis in the record for, and
therefore no merit to, the Administrative Law
Judge's finding that the complaint was defective in
its pleading because it did not comport with the
mandate of Section 102.15 of the Board's Rules and
Regulations.' We therefore further find that his
dismissal of the complaint for that reason was
without warrant.
Nor do we find support for the Administrative Law
Judge's asserted authority to dismiss the complaint
under Section 102.35 of the Board's Rules and
Regulations which deals with the duties and powers
of an Administrative Law Judge. Authority is
granted in subsection (1) of that section "To request
the parties at any time during the hearing to state
their respective positions concerning any issue in the
case or theory in support thereof." As noted
previously, the General Counsel made a lengthy and
detailed oral statement of the theory of his case and
legal citations supporting it. We therefore agree with
the General Counsel's contention that the filing of a
brief would have served no further purpose. More-
over, if, for some reason, the Administrative Law
Judge was not satisfied with the General Counsel's
presentation, neither subsection (1) nor any other
provision of Section 102.35 sanctions an order by
him to the General Counsel to file a written brief or
suffer dismissal of the complaint. Jefferson Stores,
Inc., 201 NLRB No. 101.
In their exceptions, the General Counsel and the
Charging Party contend that the Administrative Law
Judge has prejudged the merits of the complaint, and
that fairness and justice require the assignment of a
new Administrative Law Judge to this case. They
rely on statements made by the Administrative Law
Judge contained in the record to the effect that some
of the allegations in the complaint did not constitute
unfair labor practices, that the General Counsel
would be precluded from introducing any evidence
to support such allegations, and that the General
Counsel had not properly prepared his case. They
also contend that, without hearing any witnesses, the
Administrative Law Judge characterized certain
allegations in the complaint as isolated and in the
end totally rejected and prejudged the General
1 Respondent ACWA argues that the General Counsel raised issues not the complaint This is a matter to be determined by the Administrative Law
covered by the complaint We do not by this decision determine whether all Judge who hears this case.
issues sought to be litigated by the General Counsel are within the scope of
209 NLRB No. 130
THE CENTER FOR UNITED LABOR ACTION
Counsel's case by dismissing the entire complaint sua
sponte.
We have carefully examined the record and are in
agreement with the contention of the General
Counsel and the Charging Party that a new Adminis-
trative Law Judge should be appointed. In the
conduct of our hearings, it is the Board's policy not
only to avoid actual partiality and prejudgment, but
also to avoid even the appearance of a partial
tribunal. Thus. in fairness to the parties herein, as
well as to guard the integrity of these proceedings, we
shall set aside the Administrative Law Judge's Order
Dismissing Complaint and shall remand this pro-
ceeding to the Chief Administrative Law Judge for a
hearing de novo before a different Administrative
Law Judge duly designated by him, who shall
prepare and serve on the parties a decision contain-
ing findings of fact, conclusions of law, and
recommendations with respect to the unfair labor
practices alleged in the complaint herein.2
ORDER
It is hereby ordered that the Order Dismissing
Complaint of the Administrative Law Judge be, and
it hereby is, set aside.
815
IT IS FURTHER ORDERED that a hearing de novo be
held before a different Administrative Law Judge for
the purpose of receiving evidence on the issues raised
by the allegations of the complaint.
IT IS FURTHER ORDERED that, upon conclusion of
the hearing, the Administrative Law Judge shall
prepare and serve upon the parties a decision
containing findings of fact, conclusions of law, and
recommendations based upon the evidence received
and that, following service of such decision on the
parties, the provisions of Section 102.46 of the
Board's Rules and Regulations, Series 8, as amended,
shall be applicable.
2 The request for special permission to appeal from the ruling of the
Administrative Law Judge that the Charging Party is a "person" within the
meaning of the Act, filed by the Respondent Amalgamated Clothing
Workers of America, is hereby denied as it raises factual issues which can
best be resolved by the Administrative Law Judge at the hearing de novo In
addition , since our decision herein is based solely on statements contained
in the record, the Respondent ACWA's motions to strike references to off-
the-record conversations and discussion of nonrecord events in opposing
parties' briefs and letters are hereby denied.
ORDER DISMISSING COMPLAINT
HERBERT SILBERMAN , Administrative Law Judge: For
reasons stated on the record the Complaint in these
proceedings is dismissed.