The Ruberoid Co.

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---------------- ------------------------------------- (MIC UEL 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.