Valley West Welding Company, Inc., 1597 (1982)

Docket Number: 26-CA-06722

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Valley West Welding Company, Inc., 1597 (1982)

VALLEY WEST WELDING COMPANY

Valley West Welding Company, Inc. and Aluminum Workers International Union, AFL-CIO. Cases 26-CA-6722, 26-CA-6894, 26-CA-7081, and 26-CA-7700

December 16, 1982 DECISION AND ORDER

BY CHAIRMAN VAN DE WATER AND

MEMBERS JENKINS AND ZIMMERMAN

On June 27, 1980, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent, the General Counsel, and the Charging Party filed exceptions and supporting briefs; Respondent filed an answering brief to the exceptions filed by the General Counsel and the Charging Party;' and the Charging Party filed a brief in opposition to Respondent's exceptions. 2

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,3 find' Respondent has also filed a motion to strike the General Counsel's and the Charging Party's exceptions because, inter alia, they fail to set forth specifically the questions of procedure, fact, law, or policy to which exceptions are taken, and fail to notify the Board of the grounds for their exceptions or the portions of the record relied on in support of their position. Sec. 102.46(b) of the Board's Rules and Regulations, Series 8, as amended, states that any exception which does not comply with the requirements of that section 'may be disregarded.' Although the General Counsel's and the Charging Party's exceptions do not comply fully with the requirements of the rule, we have decided not to disregard them as they sufficiently designate the portions of the Decision they claim are erroneous. Rice Growers Association of California, 224 NLRB 663 (1976); cf.

Carbons Mining Corporation, 198 NLRB 293 (1972).

The Charging Party also filed a motion requesting that the Board take administrative notice of the pleadings filed by Consolidated Aluminum Corporation in Valley-West Welding Company, Inc. v. Aluminum Workers International Union, AFL-CIO, et al. v. Consolidated Aluminum Corporation, Civ. No. 78-3244-NA-CV (M.D. Tenn.). The motion is hereby denied, as these pleadings, even if true, are irrelevant to the adjudication of this case.

3 Respondent has excepted to the Administrative Law Judge's ruling receiving into evidence, over Respondent's objection, the affidavit of Francis H. Fischer, an employee of Consolidated Aluminum Corporation, executed by him for use in other litigation. We find merit in this exception. The General Counsel averred at the hearing that Fischer was unable to testify within the meaning of Rule 804(aX2) and (4) of the Federal Rules of Evidence because of physical illness, and contended that his affidavit was therefore admissible under Rule 804(bX5). The Administrative Law Judge received the affidavit into evidence, despite the General Counsel's failure to present any medical evidence to support its averment that Fischer was unable to appear because of illness. In these circumstances, the Administrative Law Judge erred in receiving the Fischer affidavit in evidence, since the Board does not permit the introduction of such affidavits absent a clear showing that the affiant is either deceased or so seriously ill that the taking of oral testimony posed a threat to the witness' health. See, e.g., Limpco Mfg. Inc., and/or Cast Products Inc., 225

NLRB 987, fn. I (1976), enfd. without opinion 96 LRRM 2791 (3d Cir.

1977). However, we find that Respondent was not prejudiced by this error, as we have dismissed that portion of the complaint in support of which the affidavit was introduced.

265 NLRB No. 204 ings,4 and conclusions of the Administrative Law Judge to the extent consistent herewith, and to adopt his recommended Order, as modified herein.

The Administrative Law Judge found, inter alia, that Respondent did not violate Section 8(a)(5) of the Act when it withdrew recognition from the Charging Party (hereinafter the Union), and therefore that Respondent did not violate the Act by unilaterally subcontracting out certain unit work, or by implementing policy of verbal and written warnings. He also found that Respondent did not violate Section 8(a)(3) by laying off a substantial part of its work force after expiration of its anode stem repair contract with CONALCO. However, the Administrative Law Judge did find that Respondent violated Section 8(aXI) by refusing to permit union steward Charles Doyle Smith to acc...

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