Standard Materials, Inc.

National Labor Relations Board - Board Decisions

Feb 27, 1979

240 N.L.R.B. 969 (N.L.R.B. 1979)

STANDARD MATERIALS, INC. 969
Standard Materials, Inc. and United Steelworkers of
America, AFLCIO. Case 15-CA-6567
February 27, 1979
ORDER DENYING MOTION FOR
RECONSIDERATION
By MEMBERS JENKINS. MURPHY. AND TRtE SI)ALI
On September 13, 1978, Respondent filed a motion
for reconsideration of the Decision and Order ' in the
instant case dated August 25, 1978. Respondent con-
tends that the Board improperly found that the Ad-
ministrative Law Judge did not err in failing to se-
quester witnesses who were named discriminatees.
Respondent originally filed exceptions to the Ad-
ministrative Law Judge's Decision alleging, inter alia,
that the Administrative Law Judge committed preju-
dicial error in failing to sequester the named discrim-
inatees. In support of its exceptions. Respondent as-
serted, as it does now, that all of the General
Counsel's witnesses were able to benefit from hearing
their alleged codiscriminatees testify with regard to
an alleged employee conspiracy to refuse to return to
work unconditionally following the strike at Respon-
dent's plant.
In its Decision the Board found no merit in the
exceptions on grounds that the Administrative Law
Judge was acting within his discretion in denying the
motion for sequestration.
In support of its motion for reconsideration, Re-
spondent relies on the Board's decision in Unga
Painting Corporation, 237 NLRB 1306, which also is-
sued on August 25, 1978, and which held that, absent
special circumstances, a motion for sequestration
I Reported al 237 NLRB 1136 (19781
240 NLRB No. 136
should be granted when a named discriminatee is tes-
tifying about events as to which another discrimina-
tee has testified or will or may testify.
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.
Having duly considered the matter, the Board has
determined that it will adhere to its position taken in
its Decision and Order; namely, that the Administra-
tive Law Judge was acting within his discretion in
refusing to sequester the named discriminatees. The
hearing in the instant case was conducted prior to the
issuance of Unga Painting Corporation, supra. Thus,
since sequestration is a procedural matter and hear-
ings are conducted in accordance with those proce-
dural rules in effect at the time of the hearing, the
Administrative Law Judge was within his discretion
in refusing to sequester the witnesses.
Moreover, Respondent's assertion that the Gener-
al Counsel's witnesses were able to benefit from hear-
ing the testimony of their fellow witnesses concern-
ing an alleged conspiracy of striking employees to
refuse to return to work unconditionally is irrelevant.
The record fails to reveal any evidence that the strik-
ing employees communicated to Respondent their
intention not to return to work unconditionally.
Thus, assuming, arguendo, that such a conspiracy ex-
isted, inasmuch as Respondent was unaware of it, the
alleged conspiracy could not have had any effect on
Respondent's determination of whether to offer rein-
statement to striking employees. Therefore, we find
Respondent's contention involving an alleged con-
spiracy among the employees to be without merit.2
It is hereby ordered that Respondent's Motion for
Reconsideration be, and it hereby is, denied.
Since Member Murphx u ould not appl Lnga Painting ( rparalriln,
pr. to hearings n other cases which were held prior to the issuance of the
decislon in that case, she would not rely on this additional ground See her
concurring opinion n ( ur/e (Ci/thing (Compani. 240 NLRB No. 41 (1979)
Standard Materials, Inc. and United Steelworkers of
STANDARD MATERIALS. NC