CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD – Remand for Further Hearing; Remand to General Counsel

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1107.03000 – Remand for Further Hearing; Remand to General Counsel

Where parties’ surface bargaining dispute turned on undisputed facts, and no party excepted to the factual findings included in a proposed decision, the Board adopted the ALJ’s factual findings but remanded for consideration of competent, reliable evidence to resolve separate interference allegations and to determine whether those allegations would affect the result of the surface bargaining allegation. Independent unfair practices committed at or away from the bargaining table, including allegations of coercive statements by employer agents to employees, may serve as evidence of bad faith in negotiations, and thus support the surface bargaining allegation. On remand, the ALJ may also consider the parties’ exceptions and responses thereto to ensure that any legal conclusions included in a new proposed decision are free of possible error. Charging party was blindsided by ALJ’s categorical refusal to consider declarations on disputed material facts where ALJ previously assigned to the case had agreed to permit the disputed issues to be decided based on declarations and rebuttal declarations rather than live testimony. The Board remanded with instructions for the ALJ to convene a hearing or otherwise determine how best to inquire fully into all issues and obtain a complete record on which a decision could be rendered.