Greens Disposal Services

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Greens Disposal Service and Construction and Gen- eral Laborers' Union Local No. 1334, affiliated with the Laborers' International Union of North America, AFL-CIO. Case 19-CA- 11704 November 19, 1980 DECISION AND ORDER REMANDING PROCEEDING TO THE ADMINISTRATIVE LAW JUDGE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 1, 1980, Administrative Law Judge David G. Heilbrun issued his Decision in this pro- ceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, Respondent filed cross-exceptions and a supporting brief, and the Charging Party filed an answering brief. Respond- ent also filed briefs in support of the Administra- tive Law Judge's Decision and in answer to the General Counsel's exceptions. 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 has considered the record and the Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, 2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. We agree with the Administrative Law Judge that Richard Azure is not a supervisor within the meaning of the Act and that, accordingly, Re- spondent did not violate Section 8(a)(1) of the Act by reason of any statements made by Azure. We also adopt the Administrative Law Judge's findings that Respondent did not violate the Act through any allegedly coercive comments made by Re- spondent's owner, John Palagi, or by otherwise "undermining the Union." Similarly, we agree with the Administrative Law Judge that the discharge of James Filipowicz did not violate Section 8(a)(3) and (1) of the Act. Accordingly, we find, as did the Administrative Law Judge, that the strike was I Respondent filed a motion to disallow and strike portions of the Charging Party's answer to the General Counsel's exception. Respond- ent's motion is denied as lacking in merit. z The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. We hereby disavow the gratuitous comments made by the Administra- five Law Judge in his Decision regarding the union representative's ac- tions during the strike and preceding events. 253 NLRB No. 47 not caused or prolonged by any unfair labor prac- tices of Respondent. However, we find, contrary to the Administra- tive Law Judge, that the strike constituted protect- ed concerted activity. The Administrative Law Judge found that the strike on August 14, 1979, was in derogation of Section 8(d) of the Act be- cause the Union never sent notice to "a Montana state agency," thereby resulting in the strikers' for- feiture of employee status and employment with Respondent. The Administrative Law Judge then recommended that the allegation that Respondent violated Section 8(a)(3) and (1) of the Act by refus- ing to reinstate the strikers be dismissed since the strikers had not been engaged in protected activity. However, there is no evidence in the record of the existence of a state agency in Montana to which the Union was required to send notice in accord with Section 8(d) of the Act. Respondent, there- fore, has failed to support this affirmative defense for its failure to reinstate certain economic strik- ers.3 Respondent attempted to present an affirmative defense of striker misconduct to the allegation that it had violated Section 8(a)(3) and (1) of the Act by its failure to reinstate these strikers. However, at the hearing the Administrative Law Judge barred the receipt of Respondent's proferred evi- dence relating to this defense on the ground that the activities described by Respondent were not of such serious nature as to bar reinstatement. After the hearing, in accord with the directive of the Ad- ministrative Law Judge, Respondent submitted its Exhibit 11, an offer of proof in the form of affida- vits from several witnesses describing the miscon- duct allegedly engaged in by certain strikers.4 The Administrative Law Judge did not consider Re- spondent's offer of proof or the issues raised there- by in his Decision. We find, however, that the mat- ters set forth in the offer of proof, if found to be true and considered in the light most favorable to Respondent, would support Respondent's affirma- tive defense. Therefore, we will remand this case for the purpose of taking evidence on Respondent's :' The General Counsel has filed a motion to reopen the record for the purpose of admitting the document identified s CGC. Exh 15. which ap- pears on its face to be a letter from an official of the "Department f Labor and Industry," State of Montana, stating. inter aliu, that Montana does not have an authorized agency to handle mediation in the private sector Respondent had filed an opposition to the General Counsel's motion The motion is hereby denied inasmuch as it does not comply with the requirements of Sec 102.48(d)(1) of the National Labor Rela- tions Board Rules and Regulations, Series 8, as amended. Furthermore in light of our determination that Respondent has failed to support its af- firmative defense, as described above, this matter is no longer in issue. 4 The General Counsel similarly submitted an offer of proof as G C Exh. 13, rebutting Respondent's assertions. 404 GREENS DISPOSAL SERVICE second affirmative defense.5 Evidence presented at the reopened hearing will be limited to those mat- ters set forth in Respondent's offer of proof, along with any appropriate rebuttal which may be of- fered by the Charging Party or the General Coun- sel. The Administrative Law Judge will then issue a Supplemental Decision resolving the question of whether or not Respondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate econom- ic strikers, as alleged in the complaint, as amended. : Inasmuch as the Administrative lI. a Judge found merit to Respond- ent's first affirmative defenlse of failure to comply with Sec (d) of the Act, the Admilistrative I.aw Judge did nol determine whether or 1not the General Counsel had estahlished a prima jfiuc case of a iolatioin of Sec 8(a)(3) and (I) of the Act by ReKpondent's failure to reinstate the strikers If no prima jfLu' case had been estahlished. there would he. of course, no reaso tn to remand this proceeding for further hearing on Respondent's second affirmative defense IHlowever, Respondent admitted in its amend- ed answer that the strikers in question did make unconditional offers tio return to work on or about October 19. 1979. and that Respondent re- fused on November I. 1979. to reinstate these strikers, sith the exception of Allen Dalve and Glen Jerome Thus. it is clear that the General Coun- sel has established a prima facie case in this regard. 3ld it is appropriate to consider Respondent's second affirmatise defense ORDER It is hereby ordered that the record in this pro- ceeding be, and it hereby is, reopened, and that a further hearinrg he held before the Administrative Law Judge for the purpose of taking evidence on Respondent's affirmative defense of striker miscon- duct. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Direc- tor for Region 19 for the purpose of arranging such further hearing, and that said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that, upon conclusion of such further hearing, the Administrative Law Judge shall prepare and serve on the parties a Sup- plemental Decision containing findings, conclu- sions, and recommendations based on the evidence received and that. following service of the Supple- mental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regula- tions, Series 8, as amended, shall be applicable. 405