Salem Village I, Inc., Salem Village II, Inc., and Salem Village III, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1982

263 N.L.R.B. 704 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Salem Village I, Inc., Salem Village II, Inc., and
Salem Village III, Inc. and Professional and
Health Care Employees Division, Local 1453,
Retail Clerks Union, Chartered by United Food
and Commercial Workers International Union,
AFL-CIO-CLC. Case 13-CA-20575
August 25, 1982
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On July 1, 1981, the Board issued a Decision and
Order' in the above-entitled proceeding in which
the Board, inter alia, granted counsel for the Gen-
eral Counsel's Motion for Summary Judgment and
found that Respondent violated Section 8(a)(5) of
the National Labor Relations Act, as amended, by
refusing to bargain collectively with the above-
named labor organization as the exclusive bargain-
ing representative of all employees of Respondent
in the appropriate unit. On April 9, 1982, the
United States Court of Appeals for the Seventh
Circuit denied the Board's application for enforce-
ment of the Board's Decision and Order and re-
manded this matter to the Board to conduct an evi-
dentiary hearing in connection with various Re-
spondent's objections to conduct affecting the
second election.2 On June 21, 1982, the Board ad-
vised the parties that it had decided to accept the
remand from the court of appeals and advised all
parties that the Board would take appropriate
action consistent with the court's remand. On July
19, 1982, the Board issued an Order Remanding
Proceeding to the Regional Director for Hearing.
In its Order, the Board directed that a hearing be
held before an administrative law judge on the
issues remanded by the court. The Board's Order
also provided that upon conclusion of the hearing
the administrative law judge shall prepare and
serve on the parties a supplemental decision con-
taining findings of fact, conclusions of law, and
recommendations and that following service of
such supplemental decision on the parties, the pro-
visions of Section 102.46 of the Board's Rules and
Regulations, Series 8, as amended, shall be applica-
ble.3 On August 4, 1982, Respondent sent a letter
to the Board contending that the Board's action in
this matter is "wholly inappropriate, illegal, and in
contempt of the United States Court of Appeals for
the Seventh Circuit."
256 NLRB 1015.
a The Board's Supplemental Decision and Certification of Representa-
tive in Case 13-RC-15219 is not reported in volumes of Board Decisions.
3 Sec. 102.46 treats generally with the processing of unfair labor prac-
tice charges following issuance of a decision by an administrative law
judge.
263 NLRB No. 111
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 decided to treat Respondent's
letter as a motion for reconsideration of the
Board's Order Remanding Proceeding to Regional
Director for Hearing. Having duly considered the
matter, Respondent's motion for reconsideration,
for the reasons detailed below, is denied.
In its letter, Respondent contends, inter alia, that
the circuit court of appeals' denial of enforcement
of the Board's Order in Case 13-CA-20575 termi-
nated the unfair labor practice case, that the hear-
ing ordered by the circuit court of appeals is a
hearing on objections, and thus a part of the pro-
ceedings in the underlying representation case
(Case 13-RC-15219), and that, as such, "the hear-
ing may not be conducted as an unfair labor prac-
tice hearing or some heretofore unheard-of amal-
gam of Objections hearing and unfair labor prac-
tice hearing." Respondent also contends that the
Board's Order of July 19, 1982, cannot be limited
to the issues specified by the Board because the cir-
cuit court of appeals held that the Employer was
entitled to a "full hearing," so that "the Employer
has the right to a hearing, without limitation, with
respect to any conduct, whatsoever, which the
Employer contends is objectionable."
With respect to remanding for a hearing in the
unfair labor practice case, the Board's Order is in
accord with longstanding Board policy. The under-
lying rationale of this policy is to preclude the in-
evitable delay which would result if the Board, as
Respondent contends it must, were to reinstate the
representation petition and, depending on the dis-
position of the election objections, require counsel
for the General Counsel to renew its Motion for
Summary Judgment. Under the present procedure,
if the administrative law judge finds that an em-
ployer's election objections are meritorious, the ad-
ministrative law judge may recommend that the
underlying certification be revoked, and the refusal
to bargain allegation be dismissed. Conversely, if
the administrative law judge concludes that the ob-
jections are lacking in merit, the Order requiring
Respondent to bargain with the certified Union
may be reaffirmed.
Respondent suggests that it will somehow be
prejudiced by the holding of a hearing in the unfair
labor practice proceeding. However, we note that
counsel for the General Counsel takes a nonadver-
sarial role at the hearing as would be the case if the
proceedings had not proceeded beyond the repre-
sentation stage, and that Respondent was specifical-
ly advised that such procedure would be followed
704
SALEM VILLAGE I, INC.
here. Since, in the circumstances present here, the
representation case and the unfair labor practice
proceeding "are really one" (Pittsburgh Plate Glass
Co. v. N.L.R.B., 313 U.S. 146, 158 (1941)), neither
logic nor timely and efficient administration of the
Act requires that these matters be arbitrarily divid-
ed, thereby requiring a second unfair labor practice
proceeding if the Board's decision is adverse to Re-
spondent and Respondent then continues to refuse
to bargain.
As noted above, remand for a hearing in the
context of an unfair labor practice case is a practice
of long standing. See Graphic Arts Finishing Co.,
Inc., 182 NLRB 318 (1970); Robert's Tours, Inc.,
244 NLRB 818 (1979); Polyflex M Company, 258
NLRB 806 (1981). The contention that the Board's
practice violates due process has been uniformly
rejected by reviewing courts. See, for example,
N.L.R.B. v. The Western and Southern Life Insur-
ance Company, 391 F.2d 119, 121 (3d Cir. 1968):
N.L.R.B. v. Bancroft Manufacturing Company, 516
F.2d 436 (5th Cir. 1975); Beaird-Poulan Division,
Emerson Electric Company v. N.L.R.B., 649 F.2d
589 (8th Cir. 1981); N.L.R.B. v. Bata Shoe Compa-
ny, Inc. (enforcement denied on other grounds),
377 F.2d 821, 825, 826 (4th Cir. 1967). As the court
observed in Bata Shoe, supra, due process requires
only that "a hearing be conducted at some stage of
the administrative proceeding before the objecting
party's rights can be affected by an enforcement
order." Further, Board orders requiring an employ-
er to bargain have been enforced where, following
a remand from the court, a hearing on objections
was conducted in the unfair labor practice hearing.
See, for example, Regency Electronics, Inc., 523
F.2d 322 (7th Cir. 1975); Newport News Shipbuild-
ing and Dry Dock Company v. N.L.R.B., 608 F.2d
108, 113-114 (4th Cir. 1979).
Respondent also argues that it is entitled to "a
hearing on objections without limitation, with re-
spect to any conduct whatsoever." If Respondent
is suggesting that it may raise issues beyond its
original objections, or other issues not previously
raised before the Board and the court, such argu-
ment borders on the frivolous. Section 10(e) of the
Act expressly provides that only issues raised
before the Board may be considered before the
court on review. Further, the court's opinion con-
tains nothing which indicates the court intended to
ignore this limitation or pass on matters not raised
before the court. In denying enforcement the
court's opinion specifically stated that "a hearing is
necessary under the circumstances of this case."
The court's opinion contains no reference to objec-
tions other than those discussed. The Board's July
19, 1982, Order Remanding Proceeding to Region-
al Director for Hearing accurately delineated the
issues which the court believed to require an evi-
dentiary hearing. Accordingly, for the reasons de-
tailed above,
IT IS HEREBY ORDERED that Respondent's letter
of October 4, 1982, which the Board has treated as
a motion for reconsideration of its Order Remand-
ing Proceeding to Regional Director for Hearing,
is hereby denied.
705