County Waste of Ulster

354 NLRB No. 54 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. County Waste of Ulster and Laborers International Union of North America, Laborers Local 108, AFL–CIO and Local 124, R.A.I.S.E., IUJAT. Case 2–CA–37437 July 24, 2009 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER On May 1, 2009, Administrative Law Judge Raymond P. Green issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. The National Labor Relations Board1 has considered the judge’s supplemental decision and the record in light of the exceptions and briefs, and has decided to affirm the judge’s rulings, findings, and conclusions and to adopt the recommended Order. On February 11, 2009, the Board remanded to the judge his finding in this case that the Respondent vio- lated Section 8(a)(1) of the Act by granting its employees a Christmas bonus.2 Noting the absence of a complaint allegation that the grant of bonus violated Section 8(a)(1), the Board directed the judge to clarify whether he intended to find an unalleged violation and, if so, whether the unalleged violation was “closely connected to the subject matter of the complaint and [was] fully litigated,” under Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990).3 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08-1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), rehearing denied No. 08–1878 (May 20, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petitions for rehearing denied Nos. 08–1162, 08–1214 (July 1, 2009). 2 353 NLRB No. 89 (2009). 3 The Board also adopted the judge’s findings that the Respondent violated Sec. 8(a)(2) of the Act by allowing Local 124, R.A.I.S.E., IUJAT (Local 124), to distribute the bonus to employees, and that it engaged in objectionable conduct by granting the bonus. The Board severed the representation case (Case 2–RC–22858) and remanded it to the Region for the purpose of conducting a second election. On remand, the judge concluded that “any additional findings regarding the [grant of bonus] would not affect the outcome of” either the unfair labor practice case or the previously severed representation case. Accordingly, the judge recommended vacating and dismissing his ear- lier 8(a)(1) grant of bonus finding. The Respondent does not except to the recommended dismissal. Rather, it moves to reopen the record to sub- mit emails and other correspondence between the judge and the parties that occurred following the remand of the 8(a)(1) finding.4 In support, the Respondent contends it requested that the emails and other correspondence be made part of the record and, although initially agreeing, the judge did not do so. The Respondent further con- tends that the correspondence is relevant “in the same manner that all other records are relevant,” and that it may “result” in the Respondent moving to reopen the hearing in the severed representation case.5 We find the Respondent’s contentions unavailing. Typically, a motion to reopen the record requests the Board to consider whether the additional evidence would require a different result. See generally, Section 102.48(d)(1) of the Board’s Rules and Regulations. The Respondent does not, however, contend that a different result is warranted in this case. Indeed, the judge noted in his supplemental decision that none of the parties seek a finding that the grant of bonus violated Section 8(a)(1).6 Thus, the Respondent has not provided a basis upon which to reopen the record. As the Board stated in Mr. Z’s Food Mart, 325 NLRB 871 fn. 1 (1998), “[t]he evidence that the Respondent seeks to introduce relates to an allegation that the judge dismissed. No party has excepted to that dismissal. Thus, . . [w]e deny the Re- spondent’s motion to reopen the record to introduce the earlier letter as it is not material to the case before us.” See also The Copps Corp., 181 NLRB 294 fn. 1 (1970), enfd. 458 F.2d 1227 (7th Cir. 1972) (affirming trial ex- aminer’s rejection of offer of proof that, if received, would not affect disposition of case).7 Accordingly, we 4 In this correspondence the judge elicited, and the parties gave, their positions regarding the remanded 8(a)(1) issue. 5 On June 26, 2009, and subsequent to the filing of its exceptions herein, the Respondent filed a motion for reconsideration and to reopen the record in the representation case. On June 29, 2009, the Board denied the motion as untimely and, on July 6, 2009, the Respondent filed a motion requesting the Board to reconsider its determination. That motion is still pending before the Board. 6 The judge explained that although they initially contended that the remanded 8(a)(1) finding was closely related and fully litigated, the General Counsel and Charging Party thereafter requested withdrawal of the finding. 7 Further, any contention concerning the relevance of the correspon- dence to the severed representation case is not applicable to a determi- nation of whether to reopen the record in this proceeding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 find the Respondent’s exceptions without merit and shall deny the motion to reopen. ORDER The recommended Order of the administrative law judge is adopted and the 8(a)(1) grant of bonus finding is dismissed. IT IS FURTHER ORDERED that the Respondent’s Motion to Reopen the Record is denied. Dated, Washington, D.C. July 24, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD SUPPLEMENTAL DECISION On February 11, 2009, the Board issued a Decision in the above captioned cases.1 Although affirming most of my find- ings and conclusions issued on May 9, 2007, the Board re- manded my finding that the Respondent had violated Section 8(a)(1) of the Act by granting a bonus to its employees. Al- though alleged by Local 108, Laborers in its Objections to the Election, this allegation was not contained in the complaint. The Board remanded the issue to determine, pursuant to Per- gament United Sales, 296 NLRB 333, 334 (1989), whether the issue was “closely connected to the subject matter of the com- plaint and [was] fully litigated.” By letter dated February 24, 3009, counsel for County Waste offered his opinion that the hearing should be reopened. On March 9, 2009, I e-mailed the parties to ask them to ad- vise me as to their respective positions. On March 19, 2009, the General Counsel stated that he took the position that my findings were closely related to the original charge and that they had been fully litigated. He also opposed reopening the hearing. On March 20, 2009, counsel for the Charging Party, emailed me and stated, in substance, that he agreed with the General Counsel. 1 Case 2–RC–22858 was severed and remanded to the Region for the purpose of holding a new election. That case is not before me. By letter dated March 23, 2009, counsel for County Waste reiterated his position that the “bonus” findings were not al- leged in the complaint and were not closely related to the charge. He further pointed out that the theory upon which the finding was made was never raised by any party. See New York Post, 353 NLRB No. 30 (2008). On March 25, 2009, I emailed the parties and among other things, requested the Respondent to indicate what factual issues it would present in the event that I reopened the hearing. On April 1, 2009, counsel for County Waste stated that he would offer evidence regarding the date that the decision to pay the bonus was made and would offer to prove that employees were aware of that decision prior to its distribution. He further stated that he would offer testimony concerning certain settle- ment discussion which would be relevant to the timing of the decision to grant the bonuses. (Although relevant, this obvi- ously could raise some evidentiary concerns.) On April 3, 2009, counsel for the Charging Party stated that Local 108 would prefer to forgo litigation of the remanded issue and therefore desired to withdraw that aspect of the charge. (Since this was not alleged in the charge, he obviously meant to say that he wanted to withdraw this particular allega- tion and finding in the case). By email dated April 8, 2009, the General Counsel joined the Charging Party’s request for withdrawal of the unalleged 8(a)(1) violation and requested that I remove from the decision the conclusion of law regarding that finding. Having determined that the Respondent violated Section 8(a)(1) and (2) by allowing Local 124 (the Intervener), to dis- tribute the bonuses, and having ordered that a new election be held, any additional findings regarding the decision to grant the bonuses would not affect the outcome of these cases. Nor would a positive or negative finding on that issue prejudice the rights of any employees. Therefore, based on the foregoing, and on the entire record, I issue the following recommended amended Order.2 ORDER I hereby withdraw my findings and conclusion that the Re- spondent violated the Act by granting the bonus. I further rec- ommend that the finding that the Respondent violated Section 8(a)(1) by granting the bonus be vacated and dismissed. Dated at Washington, D.C. May 1, 2009 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.