Kraft Foods, Inc.

KRAFT FOODS, INC. Kraft Foods, Inc. and General Teamsters Local Union No. 528. Case 10-CA-13464 January 26, 1981 ORDER DENYING MOTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On August 27, 1980, the National Labor Rela- tions Board issued a Decision and Order in the above-entitled proceeding.' On September 16, 1980, counsel for the General Counsel filed a motion for reconsideration. Thereafter, Respondent filed an opposition thereto. In his motion, counsel for the General Counsel contends that the Board erred in finding that employee Fred Dinsmore was not entitled to reinstatement and backpay in remedy of Respondent's violation of Dinsmore's Weingarten2 rights.3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board, having duly considered the matter, finds that the motion for reconsideration raises no substantial issues that were not considered by the Board in its original Decision and Order and fur- ther finds the motion for reconsideration to be without merit. ORDER It is hereby ordered that counsel for the General Counsel's motion for reconsideration be, and it is hereby is, denied. MEMBER JENKINS, dissenting: I would grant the General Counsel's motion for reconsideration and decide the issue of whether Dinsmore is entitled to a make-whole remedy be- cause a part of the information utilized by Respon- dent in reaching its disciplinary decision was ob- tained from another employee, Ellington, in viola- tion of Weingarten.4 In support of his motion, the General Counsel asserts that the Board erred in declining to pass on such a theory of recovery since his statements at 251 NLRB 598 2 NL.R.B. . J. Weingarten. Inc., 420 U.S. 251 (1975) a Member Jenkins, who dissented in part from the Decision and Order. would have ordered reinstatement and backpay fior Dinsmore 251 NLRB 598. 4 In its Decision and Order in this matter the HBoard specifically de- clined to pass on his issue because it wlas "not encompassed h Ithe com- plaint, not litigated during the hearing and [implicilvl disa.loved h the General Counsel " 251 NI.RB 568, fi 4 the hearing did not amount to an "implicit dis- avowal" of that theory. Moreover, the General Counsel argues that he specifically raised that theory in his brief to the Administrative Law Judge.' A review of the General Counsel's brief to the Administrative Law Judge reveals that the General Counsel asserted that Dinsmore was entitled to a make-whole remedy because "Respondent's case against Dinsmore grew directly out of [the] depri- vation of [the Section 7 rights of Dinsmore and Ellington]." Indeed, the Administrative Law Judge specifically found that the interview of Ellington did not comport with the requirements of Weingar- ten, but he found it unnecessary to find an addition- al violation. Under these circumstances, it is clear that the Board's inference of waiver was erroneous, such inference being based on the General Coun- sel's opposition to the introduction of evidence re- garding events which postdated the unlawful inter- views of Dinsmore and Ellington. Since the General Counsel did not disavow the theory of recovery here in question, the sole re- maining inquiry is whether the facts underlying such a theory were fully litigated at the hearing.6 In this regard, the only factual inquiry underlying this theory is whether the Respondent proceeded with its interview of Ellington after denying his re- quest for union representation. Ellington so testi- fied and, as noted above, the Administrative Law Judge specifically found this to be the case, basing a crucial credibility resolution on such finding. Ad- ditionally, Respondent was well aware during the hearing that the facts surrounding the Ellington in- terview were of great importance to the outcome of this case, with the General Counsel arguing that the evidence as to the Ellington interview support- ed Dinsmore's testimony as to his interview. Thus, it is apparent that the facts surrounding the Elling- ton interview were fully litigated at the hearing. In light of the considerations discussed above and the peculiar circumstances of this case, I would grant the General Counsel's motion for re- consideration; however, the majority declines to do so. Accordingly, I dissent. I The General Counsel appended to his motlion a cops of his brief to the Administrative L.aw Judge I It is well settled that additional violatior of the Act. not alleged in the complaint, may be found when the administrative law judge's find- ings concerning the questiors are related t the general sihJlct ni:ltter If the complailnt and charge, the facts , ure fills ltlig.lc. and Ire rpon- dtlt did not obwject lellnllro coincernilllg them Seet. g . Phillip, In- du trim. Inor ported, 172 Nl RB 2 11). fi 2 I 't*I 254 NLRB No. 95 803