Ron E. Savoia Constraction Co., Inc.

200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ron E. Savoia Construction Co., Inc. and Bricklay- ers and Allied Craftsmen Local 7 and Laborers' International Union, Local 894, AFL-CIO and Operative Plasterers' and Cement Masons' International Association, Local 109, AFL- CIO. Cases 8-CA-18771, 8-CA-18881, and 8- CA-18882 June 17, 1988 ORDER REMANDING PROCEEDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On January 6, 1987, Administrative Law Judge Benjamin Schlesinger issued a decision in this pro- ceeding. The Respondent filed exceptions, and the General Counsel filed exceptions and a supporting brief. On February 20, 1987, the Board issued John Deklewa & Sons, 282 NLRB 1375. The Board has decided to remand this case to the administrative law judge for further consideration in light of Deklewa, l including, if necessary, reopening the record to obtain more evidence on the collective- bargaining representative status of the Unions. Accordingly, it is ordered that this proceeding is remanded to the administrative law judge for fur- ther action as noted above. It is further ordered that the administrative law judge shall prepare and serve on the parties a sup- plemental decision containing such resolutions, findings, conclusions, and recommendations as found necessary consistent with the remand. Fol- lowing service of the supplemental decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable. MEMBER CRACRAFT, dissenting. Contrary to my colleagues, I would not remand this case to the administrative law judge. The fact that the Board in John Deklewa & Sons, 282 NLRB 1375 (1987), provided for retroactive application of that decision does not justify the Board raising an issue no party has argued in this case. ' Deklewa was decided approximately 2 weeks after the Respondent's exceptions were filed with the Board in this proceeding While it is true that the Respondent's exceptions do not precisely anticipate the theory, available under Deklewa, by which the Respondent would not have a bargaining obligation with the Charging Parties, Exception 2 in part argues that "At no time did the Respondent formally recognize Local 894 as bargaining agent and in October, 1985 requested certification by the Board Clearly the Respondent was not willing to recognize Local 894 unless it was certified." This assertion, coupled with Deklewa 's decla- ration that its rules shall apply "to all pending cases," supra at 1389, is sufficient to authorize a remand here We find it unnecessary to comment on what inferences can be drawn on the present record as to the exist- ence or nonexistence of a 9(a) relationship The parties will be given an opportunity to argue the applicability of Deklewa to the present record and the need, if any, to proffer additional evidence Member Babson agrees that a remand is warranted under the circumstances of this case 289 NLRB No. 26 Even though the Board may have the legal au- thority to act in the absence of exceptions, the gen- eral practice, as codified in the Board' s Rules, is to limit the scope of review to the issues raised by the parties. See Anniston Yarn Mills, 103 NLRB 1495 (1953) ("well-established Board practice" is to adopt a judge's findings to which no exceptions are filed); Section 102.46(b)(2) of the Board's Rules and Regulations. ("Any exception . . . not specifically urged shall be deemed to have been waived.") Consistent with the logic of the Rules, the Board has rejected exceptions that fail to comply with the requirement that an excepting party must set forth with specificity the portions of a judge' s decision to which it excepts and the basis for the exceptions. See Bonanza Sirloin Pit, 275 NLRB 310 (1985), and cases cited therein. A fortiori when no party has raised an issue, the Board should decline to do so on behalf of any party. See Springfield Transit Man- agement, 281 NLRB 72 (1986), in which the Board declined to pass on a jurisdictional issue, despite the recent issuance of Res-Care, Inc., 280 NLRB 670 (1986), because no party raised the matter in its exceptions. The judge's decision in this case issued in Janu- ary 1987. The Respondent filed exceptions, and the General Counsel filed exceptions and a supporting brief. Neither party raised the 8(f) issue. Deklewa issued immediately after the parties filed their posi- tion papers. Throughout the entire proceeding herein and in its exceptions, the Respondent's sole defenses to the complaint allegations that the Unions enjoyed 9(a) status were that the Unions had not been certified and that the bargaining units were inappropriate as they were one-person units. Neither of these defenses would appear to be af- fected in any way by the issuance of Deklewa.' No party sought to bring Deklewa's applicability to the Board's attention. Now, more than 15 months after Deklewa issued, even though the parties still have not raised the 8(f) issue, the majority does so sua sponte. Under these circumstances, I believe the majority's action is an unjustified departure from the above-cited precedent and an abuse of discre- tion. I therefore dissent. ' The majority admits the Respondent's exceptions do not relate di- rectly to the issues decided in Deklewa Nevertheless they contend the language of the Respondent's Exception 2, coupled with Deklewa's state- ment that its revision of 8(f) law will be applied retroactively , justifies a remand in this case However, as noted above, the Respondent's excep- tions to the bargaining order were based on specific allegations about the Unions' 9(a) status, i.e., that the Unions were not certified and that they represented one-person units. The Respondent 's Exception 2, quoted by the majority, that the Unions could never be 9(a) representatives without Board certification , had no merit when filed, does not address the area of law restructured by Deklewa, and still has no merit Accordingly, I do not find the Respondent's exceptions broad enough to encompass a spe- cific Deklewa issue and put that Deklewa issue before the Board