The Ruberoid Co.

National Labor Relations Board - Board Decisions

Jul 19, 1961

132 N.L.R.B. 245 (N.L.R.B. 1961)

FUNKHOUSER MILLS, DIVISION OF THE RUBEROID CO. 245
National Labor Relations Board as the representative of such
employees. The unit is :
All production and maintenance employees employed by
Simmons, Inc., at its San Juan, Puerto Rico, place of busi-
ness, excluding all office clerical employees, truckdrivers,
drivers' helpers, dispatching and receiving clerks, ware-
house employees, guards, and supervisors as defined in the
National Labor Relations Act.
COIIITE DE EMPLE ADDS DE SIMMONS, INC.
(ALSO KNOWN AS COMITE DE NEGOCIA-
CIONES DE LOS EMPLEADOS DE SIMMONS,
INC.,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative) (Title)
Dated---------------- -------------------------------------
(MICUEL PACHECO CINTRON, Representative)
Dated---------------- -------------------------------------
(ArGEI. LUIS GA\IRARO, Representative)
Dated---------------- -------------------------------------
(JUAN A GARCIA, Representative)
Dated---------------- -------------------------------------
(JosE C. BURGOS , Representative)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Funkhouser Mills, Division of The Ruberoid Company and
United Cement, Lime and Gypsum Workers, Local Union 402.
Case No. 10-CA-475. July 19, 1961
ORDER REMANDING CASE TO TRIAL EXAMINER
Hearing upon the complaint herein was held before Trial Exam-
iner John H. Dorsey on February 23, 24, and 25, 1960. On February
24, 1960, on motion of the Respondent at the close of the General
Counsel's case , the Trial Examiner dismissed the complaint insofar
as it alleged that the Respondent had violated Section 8(a) (3) and
(1) of the Act by failing to recall, and by discharging, James E.
Norrell. On June 23, 1960, the Trial Examiner issued his Interme-
diate Report reaffirming his ruling of dismissal and further finding
that the Respondent had not engaged in the other unfair labor prac-
tices alleged in the complaint, and recommending that the complaint
be dismissed in its entirety. Thereafter, the General Counsel filed
132 NLRB No. 20.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exceptions to the Intermediate Report and a supporting brief. A.
brief in support of the Intermediate Report was filed by the Re-
spondent.
On October 25, 1960, the Board issued an order finding that the
General Counsel had established a prima facie case as to the dis-
charge of employee Norrell and remanding the case to the Trial Ex-
aminer for further proceedings to allow Respondent to present its
defense to that allegation . The Board further found that the Inter-
mediate Report did not adequately set forth "findings of fact, con-
clusions , and the reasons or basis therefor , upon all material issues
of fact, law, or discretion presented on the record " as required by
Section 102.45 of National Labor Relations Board Rules and Regu-
lations, Series 8. Accordingly , the Board directed the Trial Exam-
iner to prepare a Supplemental Intermediate Report in conformity
with those rules.
On December 15, 1960, the hearing was reopened . 1 At the hearing,
the Trial Examiner permitted , as directed by the order , the presenta-
tion of Respondent 's defense to the alleged discriminatory discharge
of Norrell, and rebuttal thereof by the General Counsel.
On January 27, 1961, the Trial Examiner issued his Supplemental
Intermediate Report, finding in part that the Board "has no authority
to remand a case to a Trial Examiner with directions to rewrite, and
how to write his Intermediate Report"; that the Intermediate Report
in this case "complied with" and "satisfied" the Administrative Pro-
cedure Act ( 5 U.S.C. 1001 et seq. ), herein called the APA, as "re-
peated" in the Board 's Rules and Regulations ; that in any event the
Board's Statements of Procedure "estop it from remanding to rewrite
an Intermediate Report " which does not satisfy the APA; and that
it was "prejudicial error" for the Trial Examiner to comply with
the Board 's order. Thereafter , the General Counsel filed further
exceptions and a supporting brief. A brief in support of the Sup-
plemental Intermediate Report was filed by the Respondent.
The Trial Examiner 's refusal to comply with the Board 's Rules
is premised on his assertion that he has been directed by the Board
to "rewrite" his Intermediate Report "in accord with a formula of its
own choosing." He further asserts that his Intermediate Report
satisfies the requirements of Section 8 (b) of the APA .2 Inferentially,
the Trial Examiner is saying that the Board has directed him to
rewrite his Intermediate Report in some manner other than that pre-
scribed by the APA. Such ii conclusion is wholly in error. The
1 The Trial Examiner requested the parties to file with him briefs on the question of
whether the Board had the power to order him to rewrite his Intermediate Report The
General Counsel declined to submit such a brief Respondent did submit a brief on the
Board ' s powers in this respect
2 Section 8 ( b) of the APA , in pertinent part , requires inclusion in Trial Examiners'
reports of "a statement of (1) findings and conclusions , as well as the reasons or basis
therefor , upon all the material issues of fact , law or discretion presented on the record "
FUNKHOUSER MILLS, DIVISION OF THE RUBEROID CO. 247
Board has directed the Trial Examiner to do that which he was re-
quired by law and Section 102.45 of the Board's Rules and Regula-
tions 3 to do in the first instance, namely, to prepare and issue an
Intermediate Report in accordance with the requirements of the
APA. It was not enough for the Trial Examiner to make mere broad
conclusions with respect to the allegations of the complaint, as he
did in his original Intermediate Report, without setting forth the
relevant evidence supporting these conclusions and without an an-
alysis of the evidence, including resolutions of credibility, to show
how he arrived at his conclusions. And it is not enough for the Trial
Examiner merely to say, as he does in his Supplemental Intermediate
Report, that he had considered all the evidence and contentions in
making his findings and conclusions. It does not suffice, as he seems
to be saying, that he had done these things mentally. His report must
show on its face what he had considered, and how, in reaching his
findings of fact and conclusions of law. This is what the Board di-
rected the Trial Examiner to do, and nothing more, or less.
The Trial Examiner further asserts that even if his Intermediate
Report does not satisfy the requirements of the APA, the Board lacks
authority to remand the case to him with a direction to write a report
which meets these requirements. He argues that this is so because
Section 101.12 of the Board's Statements of Procedure does not pro-
vide for the remand of a case to a Trial Examiner "to rewrite an
Intermediate Report" after the issuance of the report by the Trial
Examiner and the consequent transfer of the case to the Board. He
regards the Board's failure specifically to provide for such procedure
in Section 101.12 as tantamount to its estoppel to remand the Inter-
mediate Report to him as it did in this case. He also considers the
Board's action in this circumstance as prejudicial error. No pro-
tracted discussion of these arguments is necessary. The Trial Exam-
iner ignores Section 102.48 of the Board's Rules and Regulations
which provides that upon the filing by a party of exceptions to an
intermediate report the Board, in disposing of the matters raised
thereby, may, among other things, "make other disposition of the
case." This express language is sufficiently broad to include the
remand procedure herein involved. As to the Trial Examiner's asser-
tion of prejudicial error, it may briefly be noted that he has failed to
give any indication of who has been prejudiced by the remand of the
case to him to perform his legal duty or how such result follows from
the Board's Order. It is inconceivable that any party in this case
could possibly have been prejudiced by an order to the Trial Exam-
iner to comply with the law and prepare a report in such manner
Section 102.45 provides in part that the Trial Examiner 's Intermediate Report "shall
contain findings of fact, conclusions , and the reasons or basis therefor , upon all material
isaues of fact, law, or discretion presented on the record "
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Board in reviewing the record, which necessarily includes
the Trial Examiner's Intermediate Report, may sensibly be apprised
of the reasons or basis for the Trial Examiner's findings and conclu-
sions upon all the material issues of fact and law in the case.
Furthermore, the statutory scheme of the APA and the National
Labor Relations Act places direct responsibility upon the Board to
see to it that parties litigant be afforded the kind of Intermediate
Report to which they are entitled by law.
We again remand this case to the Trial Examiner with the explicit
directive that he prepare and issue an Intermediate Report in this
case in compliance with the requirements of Section 102.45 of the
Board's Rules and Regulations and further instruct him that he, like
all other of the Board's Trial Examiners, must, in future cases in
which he may issue Intermediate Reports, satisfy these requirements.
Moreover, let it be explicit that we are not directing the Trial Exam-
iner to make credibility resolutions in favor of one side or the other,
or in favor of one witness or against any other witness. Nor do we
direct him to make findings favorable to one of the parties as opposed
to the other, or as to the ultimate conclusions which he shall reach
on the basis of the credibility resolutions and findings which he may
make. Our direction relates only to the need for his credibility resolu-
tions, findings, and conclusions and the manner in which they are to
be set forth in his report.
IT IS HEREBY ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner for the preparation and issuance
of a Second Supplemental Intermediate Report setting forth findings
of fact, conclusions of law, and recommendations in conformity with
the Board's remand order of October 25, 1960, and with the Board's
Rules and Regulations as explicated herein.
MEMBER BROWN took no part in the consideration of the above Order
Remanding Case to Trial Examiner.
New Orleans Roosevelt Corporation and General Truck Drivers,
Chauffeurs, Warehousemen and Helpers , Local 270, affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , Ind. Cases Nos.
15-CA-17241 and 15-CA-1724-2. July 20, 1961
DECISION AND ORDER
On September 15, 1960, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
132 NLRB No. 22.