Kraft Foods, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 803 (N.L.R.B. 1981)

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