General Maintenance Engineers, Inc.

National Labor Relations Board - Board DecisionsApr 24, 1963

142 N.L.R.B. 295 (N.L.R.B. 1963)

GENERAL MAINTENANCE ENGINEERS, INC . 295 General Maintenance Engineers , Inc. and Philadelphia Window Cleaners and Maintenance Workers Union , Local No. 125. Case No. 4-CA-2630. April 24, 1963 ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR FOR FURTHER HEARING On December 18, 1962, Trial Examiner Sidney Sherman issued his Intermediate Report in the above-entitled proceeding, and on the same date the proceeding was transferred to the Board. Thereafter, the General Counsel, the Respondent, and the Charging Union filed exceptions to the Intermediate Report and supporting briefs. The Trial Examiner found in his Intermediate Report that the Respondent had violated Section 8(a) (3) and (5) of the Act. Dur- ing the course of the hearing the General Counsel moved to withdraw two allegations of the complaint concerning incidents on May 2 and 11, 1962. The Trial Examiner approved the withdrawal of both allega- tions over the Charging Union's objection stating that he had, "no alternative under the Board's Rules but to grant the motion." There- after, the Charging Union excepted to the Trial Examiner's ruling. The Board finds merit in the Charging Union's exception and over- rules the Trial Examiner's ruling on said motion for the following reasons. It is our view that where, as here, relevant evidence has been adduced at a hearing, the General Counsel no longer retains absolute control over the complaint; and a subsequent motion to dismiss the complaint or any portion thereof is within the Trial Examiner's discretionary authority.1 In the circumstances of this case, we find that the Trial Examiner's peremptory approval of the General Counsel's motion was prejudicial error. The record evidence concerning the events of May 2, which were alleged as violations of the Act, was, in our opinion, of such charac- ter in scope and weight as to establish a prima facie case of unlawful discrimination. However, as the parties may have been precluded by the Trial Examiner's ruling from fully litigating these alleged violations, we shall remand these particular issues for further hearing to afford the parties an opportunity to introduce additional relevant evidence if they desire. With regard to the events of May 11, 1962, however, we find that the General Counsel fully presented his evidence but without estab- lishing a prima facie case in this connection. We find, therefore, that the Trial Examiner's ruling as to May 11, 1962, was harmless error. Accordingly, we shall not provide for the admission of addi- tional evidence concerning the events of May 11. 1 Cf. Kohler Co., 128 NLRB 1062, 1102. 142 NLRB No. 26. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To the extent that new evidence at the reopened hearing may affect the Trial Examiner's present findings, including the Union's majority status, the Trial Examiner may revise such findings or make addi- tional findings where necessary. The Board having duly considered the matter, IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is, reopened, and that a further hearing be held before Trial, Examiner Sidney Sherman for the purpose of receiving additional evidence relevant to the May 2 allegation. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, re- manded to the Regional Director for the Fourth Region for the pur- pose of arranging such further hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof; and IT IS FURTHER ORDERED that, upon conclusion of the supplemental hearing, unless the parties waive their rights thereto, the Trial Examiner shall prepare and serve upon the parties a Supplemental Intermediate Report, and that following the service of such Supple- mental Intermediate Report upon the parties, the provisions of Sec- tion 102.46 of the Board's Rules and Regulations, Series 8, as amended,, shall be applicable. MEMBER RODGERS took no part in the consideration of the above Order Remanding Proceeding to Regional Director for Further Hearing. International Union, United Automobile , Aerospace, Agricul- tural Implement Workers of America (UAW), AFL-CIO, and its Local 899 [John I. Paulding, Inc.] and George H. Young. Ccase No. 1-CB-70. April 25,1963 DECISION AND ORDER Upon a charge and amended charge filed on April 23 and July 11, 1962 , respectively , by George H. Young, an individual , against Inter- national Union, United Automobile, Aerospace, Agricultural Imple- ment Workers of America (UAW), AFL-CIO, and its Local 899 herein called Respondents , the General Counsel of the National Labor Relations Board by the Regional Director for the First Region issued a complaint and notice of hearing , alleging that the Respondents had engaged in and were engaging in unfair labor practices affecting com- merce within the meaning of. Section 8(b) (1) (A) and (2) and Sec- tion 2 ( 6) and ( 7) of the National Labor Relations Act, as amended. Copies of the charge , amended charge , complaint , and notice of hear- ing were duly served upon Respondents. 142 NLRB No. 15.