Multimatic Products, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 1982

263 N.L.R.B. 373 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Multimatic Products, Inc. and Industrial Trade
Union Local 231, International Union of Dolls,
Toys, Playthings, Novelties and Allied Products
of the United States and Canada, AFL-CIO.
Case 29-CA-6253
August 13, 1982
ORDER REMANDING PROCEEDING
BY MEMBERS FANNING, JENKINS, AND
TRUESDALE
On January 30, 1981, Administrative Law Judge
Jesse Kleiman issued his Decision in this proceed-
ing.' Thereafter, Respondent filed exceptions and a
supporting brief, alleging, inter alia, that the Union
had engaged in fraudulent conduct, and also that
Regional Office personnel have engaged in improp-
er conduct with respect to this proceeding. On
August 28, 1981, the Board issued a Notice To
Show Cause why this proceeding should not be re-
manded to the Administrative Law Judge for the
purpose of adducing further evidence and making
appropriate findings with respect thereto, concern-
ing Respondent's allegations of fraud on the part of
the Union, as well as Respondent's allegations of
improper conduct by Regional Office personnel,
and how that conduct, to the extent engaged in, af-
fects the validity of the Administrative Law
Judge's rulings, findings, conclusions, and recom-
mended Order. All parties filed responses to the
Notice To Show Cause.2
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 of the Administrative Law Judge in light
of the exceptions and briefs, as well as responses to
the Notice To Show Cause, and has decided, based
on an evaluation of the available evidence, to
remand the proceeding herein to the Administra-
tive Law Judge for the purpose of adducing fur-
ther evidence and making appropriate findings with
respect thereto, concerning Respondent's allega-
tions of fraud on the part of the Union, as well as
Respondent's allegations of improper conduct by
i The Administrative Law Judge concluded that Respondent violated
Sec. 8(a)(1) and (3) of the Act by the following conduct: threats. interro-
gation, creating the impression of surveillance, promise of benefit, urging
employees to allow Respondent to sponsor a labor organization of its
own choosing, and discharging and failing to reinstate six employees, all
in response to their union activity. The Administrative Law Judge fur-
ther concluded that Respondent's unfair labor practices were so serious
and substantial so as to preclude the holding of a fair election, and that a
bargaining order was therefore warranted under N.LR.B. v. Gissel Pack-
ing Ca. Inc.. 395 U.S. 575 (1969).
1 The Charging Party filed its response on September IS, 1981, and the
General Counsel and Respondent filed their responses on October 5 and
November 3, 1981, respectively.
263 NLRB No. 49
Regional Office personnel, and how that conduct,
to the extent engaged in, affects the validity of the
Administrative Law Judge's rulings, findings, con-
clusions, and recommended Order.
The Administrative Law Judge is instructed to
make credibility resolutions, findings of fact, and
conclusions of law, and to reevaluate, if necessary,
earlier credibility resolutions, findings of fact, and
conclusions of law in light of evidence already re-
ceived, and any new evidence adduced at the
second reopened hearing.
Our dissenting colleague would summarily affirm
the Administrative Law Judge in part and reverse
in part without providing a supporting rationale.
Member Zimmerman makes the naked assertion
that the hearing we direct "is not likely to affect
the validity or invalidity of the Administrative
Law Judge's [unfair labor practice] conclusions."
We completely disagree with the dissent's ap-
proach.
We begin by pointing out that the Administra-
tive Law Judge failed to make any significant find-
ings concerning the evidence of fraud and miscon-
duct presently in the record. We also note, based
on the responses to our Notice To Show Cause,
that the record evidence relating to the alleged
fraud and misconduct is far from complete. In sum,
at this point in the proceeding, we are dealing with
allegations and testimonial assertions, not credited
evidence. Adoption of the dissent's approach
would require premature findings by us, both as to
the allegations of fraud and misconduct themselves,
as well as to the extent that any such fraud and
misconduct may have affected the validity of the
Administrative Law Judge's unfair labor practice
conclusions. In addition, we would have to re-ra-
tionalize or reverse the Administrative Law
Judge's credibility resolutions based on those pre-
mature findings. This we decline to do. Unlike our
dissenting colleague, we prefer to deal with hard
facts, rather than traffic in speculation. We there-
fore reject Member Zimmerman's position that we
need examine these allegations no further.
Furthermore, the Board acts in the public inter-
est to enforce public, not private, rights. National
Licorice Company v. N.L.R.B., 309 U.S. 350 (1940).
Indeed, we cannot emphasize strongly enough that
serious allegations have been made, not only that a
party to an unfair labor practice proceeding may
have grievously abused the processes of this
Agency, but also that personnel of this Agency
may have somehow, wittingly or unwittingly,
played a role in that abuse. Thus, the public inter-
est and the public trust in this Agency are at stake.
It is therefore imperative that a full and open hear-
ing be had concerning such allegations, so that all
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evidence may be brought to light. Accordingly,
we cannot disagree strongly enough with our dis-
senting colleague, who views such proceedings as
having "no apparent [purpose]." The apparent pur-
pose herein is nothing less than the integrity of the
administrative and judicial process, and of this
Agency.
Accordingly,
It is hereby ordered that the above-entitled pro-
ceeding be remanded to Administrative Law Judge
Jesse Kleiman who shall take such action as is re-
quired in accordance with this Order.
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
supplemental decision containing credibility resolu-
tions, findings of fact, conclusions of law, and rec-
ommendations to the Board, and that, following
service of the supplemental decision on the parties,
the provisions of Section 102.46 of the National
Labor Relations Board Rules and Regulations,
Series 8, as amended, shall be applicable.
MEMBER ZIMMERMAN, dissenting:
I cannot join my colleagues in their decision to
remand this proceeding. I would affirm the Admin-
istrative Law Judge's conclusions as to Respond-
ent's violations of Section 8(a)(l) of the Act, and
the Administrative Law Judge's conclusions that
Respondent violated Section 8(a)(3) of the Act in
discharging and failing to reinstate employees Do-
minick Lauriano, Jorge Arias, and Luz Fuentes,
and by failing timely to reinstate employee Eileen
Darcy. Based on the record evidence, I would not
affirm the Administrative Law Judge's conclusion
that employee Steven Ezegelian was constructively
discharged, or that Respondent violated Section
8(a)(3) of the Act by discharging Maria Bolta Vaz-
quez. The outcome of any further evidentiary hear-
ing on the alleged fraud by the Charging Party and
improper conduct by counsel for the General
Counsel is not likely to affect the validity or inva-
lidity of the Administrative Law Judge's conclu-
sions in the above-noted unfair labor practice mat-
ters. Thus, I see no reason for the Board not to re-
solve those matters now.
I also find that the record fails to support the
Administrative Law Judge's conclusions that the
Charging Party's secretary-treasurer and paid orga-
nizer, Hector Lopez, was unlawfully discharged,
and that the Charging Party had majority support
within the unit. The existing evidence of fraud by
the Charging Party only serves to compound the
already fatal evidentiary shortcomings in regard to
the Administrative Law Judge's conclusions about
Lopez' discharge and the Charging Party's major-
ity status, and I therefore see no reason for the
Board to await the development of additional evi-
dence of such fraud before finally resolving these
matters. Since my colleagues insist on prolonging
these proceedings, to no apparent end, I dissent.3
' My colleagues perceive my opposition to their remand as an all-out
assault on "the public interest and the public trust in this Agency" and
the "integrity of the administrative and judicial process." To the con-
trary, I believe that deciding the unfair labor practice issues in this case
on the record before us will preserve those interests. I simply do not
see-nor have my colleagues explained-how those interests will be safe-
guarded by remanding this case to the same Administrative Law Judge
who, having already been made aware in the reopened hearing of the co-
pious evidence of the Charging Party's fraud, was no more than "both-
ered and disturbed by ... the Union's questionable conduct." Moreover,
I fail to see how the Charging Party's fraud in soliciting authorization
cards could taint the evidence adduced through employee witnesses con-
cerning the alleged incidents of 8(aXl) and (3) discharges which I would
find. As to those issues, Respondent twice had an opportunity to submit
evidence, the second time with knowledge of the fraud, at which time it
failed to produce any connection between the fraud and the testimony of
these witnesses. Similarly, I fail to perceive how the conduct of the Gen-
eral Counsel's representative in handling the fraudulent matters will alter
such findings. If, as it appears, Respondent committed unfair labor prac-
tices, then the Charging Party's wrongdoing affords it no defense to such
conduct. As for the unfair labor practices which directly hinge on the
Charging Party's perpetrated fraud, I would, as noted, reject a bargaining
order and an 8(aX5) finding, and the finding that Hector Lopez' dis-
charge was unlawful. Such actions will best vindicate the public interest
in this case. Rather than ignoring the evidence of fraud, I would act on
it, which my colleagues, as yet, are unwilling to do. The Charging
Party's fraudulent conduct could also be referred to appropriate authori-
ties for possible prosecution, and the conduct of counsel for the General
Counsel can be referred to the General Counsel for investigation and for
any disciplinary action. Thus, I do not oppose continued investigation of
the alleged misconduct on the part of the Charging Party and counsel for
the General Counsel in this case. But such a continued investigation can
be conducted in a separate proceeding. Resolution of the unfair labor
practice issues in this case requires no further investigation into the in-
stant allegations of misconduct.
374