Airport Connection

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1076 (N.L.R.B. 1979)

I)I.( ISI()NS ()O' NAI IO()NAI. I, AIB()R R I AI I()NS BOAR DI)
Public Services Planning and Analysis Corporation,
d/b/a Airport Connection and Barrett R. Shames.
Case 32 CA 821
August 3, 1979
I)ECISION ANI) ORDIER
BY ('IAIRMIAN FANNING ANI) MEMBIRS .Ii NKINS
ANI) MIURPIIY
Upon a charge filed on March 27, 1978, hb Barrett
R. Shames, an individual, and duly served on Public
Services Planning and Analysis Corporation, d/b/a
Airport Connection, herein called Respondent, the
General Counsel of the National ILabor Relations
Board, by the Regional Director tor Region 32. issued
a complaint on February 28, 1979, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) and (I)
and Section 2(6) and (7) of the National Labor Rela-
tions act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an administrative
law judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleged in substance that on March 23, 1978,
Respondent discharged its employee Barrett R.
Shames for engaging in protected concerted activities,
and since that date has failed and refused, and contin-
ues to fail and refuse, to reinstate him to his former
position of employment. On March 9. 1979, Respon-
dent filed its answer, admitting in part and denying in
part the allegations of the complaint, and asserting as
an affirmative defense that Barrett R. Shames was
discharged for cause.
On May 30, 1979, Respondent filed directly with
the Board a Motion fr Summary Judgment and a
memorandum in support thereof, alleging that the
charge is untimely and therefore barred by Section
10(b) of the National Labor Relations Act, as
amended. Respondent therefore requests that sum-
mary judgment be entered in its favor and that the
complaint be dismissed. On June 18. 1979, the Gen-
eral Counsel filed a response in opposition to Respon-
dent's Motion for Summary Judgment. with exhibits
attached, contending that the charge was timely filed
and therefore properly reinstated.
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
On March 27, 1978. Barrett R. Shames filed the
original charge in this case, alleging that Respondent
discharged him on March 23, 1978. in violation o'
Section 8(a)(3) of the Act. The charge was served on
Respondent on March 29. 1978. After an investiga-
tion of the charge, the Region erroneously concluded
that Respondent was a local transit system and that
the Board would therefore not assert jurisdiction over
it. Consequently, a Board agent solicited a with-
drawal of the charge from Shames. The charge was
withdrawn without prejudice on April 13. 1978. and a
letter so notifying Respondent was sent on that date.
On September 6. 1978, Robert Hurley, another em-
ployee of Respondent, filed a charge alleging that he
and two other employees were discharged in violation
of Section 8(a)(3) and ( I) of the Act. The charge was
investigated and the Region concluded that Respon-
dent's operation constituted a link in interstate corn-
merce and that the assertion ofiturisdiction was there-
tore proper. IThe Regional l)irector issued a
complaint in that case on October 30(). 1978. Some
time during the month of November 1978. Shames
contacted the Regional office to request reconsider-
ation of his case in light of' the Region's decision to
assert jurisdiction over Respondent. Realizing its er-
ror, the Region notified Respondent that it had de-
cided to reinstate Shames' original charge and re-
quested that Respondent submit any additional
evidence pertaining to the case.
On January 4, 1979, a legal representative and the
president of Respondent met with a Board agent to
discuss settlement in the aforementioned flurley case.
A settlement was reached which, by its terms. ex-
pressly reserved the right of the General Counsel to
proceed to hearing in the Shames case. On l-ebruary
8, 1979, the Regional Director again notified Respon-
dent that he had granted Shames' request to reinstate
the charge and again offlered Respondent additional
opportunity to submit evidence in that case. Respon-
dent submitted no additional evidence, and on Febru-
ary 28, 1979, the Regional Director issued a com-
plaint based on the reinstated charge.
In its motion, Respondent submits that Section
10(b) of the Act prohibits the reinstatement of a
timely filed charge more than 6 months beyond the
date of the alleged unfair labor practice. In the alter-
native, Respondent submits that assuming the Gen-
eral Counsel does have the discretion to reinstate a
charge it is inequitable to have done so in the present
case since Respondent was in no way responsible for
the Region's mistaken belief regarding its jurisdiction
and its subsequent withdrawal of the original charge.
In opposition to the motion, the General Counsel
submits that it is within his discretion to reinstate a
timely filed charge which has been withdrawn, and
243 NLRB No. 183
1076
AIRPORT (O'()NNI('I O\N
that it is not an abuse of this discretion to have done
so in the present case.
After careful consideration of the motion and the
documents submitted in support thereof, as well as
the briefs filed by the parties we have decided that
Section 10(h) does not require the dismissal of the
complaint herein. Accordingly. we shall deny Re-
spondent's Motion for Summary Judgment.
Initially, we find no merit in Respondent's conten-
tion that Section 10(b) prohibits the reinstatement of
a timely filed charge more than 6 months beyond the
date of the alleged violation. Section 10(bh) of the Act
provides that "no complaint shall issue based upon
any unfair labor practice occurring more than six
months prior to the filing of the charge with the
Board." This section requires that a charge be filed
and served on Respondent within 6 months of the
date of the violation alleged in the charge. The charge
herein was filed within I week of the alleged unlawful
discharge and the Respondent was served with a cop:
within I week of the filing. Thus there is no question
that the charge herein was timely filed. Furthermore.
Section 10(b) imposes no time or other limitation on
the authority of the General Counsel to issue a com-
plaint once a timely charge is filed. Rather. the Gen-
eral Counsel, pursuant to Section 3(d) of the Act, has
virtually unlimited discretion to proceed on such
timely filed charges as he deems fit and. in the ab-
sence of a showing of abuse of this discretion, the
Board will not interfere with the General Counsel's
exercise thereof.' This discretion clearly includes the
authority to reinstate timely filed charges which have
been withdrawn.2
We also find no merit in Respondent's contention
that the General Counsel abused his discretion in re-
instating the charge herein. As stated in our decision
in Silver Baklery and California Pacific Signs, the
Board will not overrule the General Counsel's deci-
sion to reinstate a timely filed charge unless Respon-
dent can show that the equities of the case compel
such a result. There has been no such showing here.
First, the Charging Party in this case, as in Silver
Bakery, has been prompt and diligent in the pursuit
of his remedy. He filed the original charge within I
week of his termination and withdrew it only upon
being advised that it would be dismissed for lack of
jurisdiction) Upon learning that the Region erred in
California Pacific Signs. Inc. 233 NLRB 450 (1977).
2 Silver Baker, Inc. of Newton, 150 NLRB 421 (1964). enforcement denied
351 F.2d 37 (Ist Cir. 19651: California Pacific Signs, supra
IUnlike the Charging Party in oppers Compan. Inc.. Forest Products
Division, 163 NLRB 517 (1967). a case relied on by Respondent in its mo-
tion, the Charging Party here did not seek to have his original charge with-
drawn pursuant to a voluntary adjustment with Respondent
soliciting the withdrms al he immcdiat tl requested
reinstatement of the charge.
Nor can Respondent allege that it has relied to its
detriment on the withdrawal ofi the original charge. Il
addition to being notified hb the Region that thc
charge was bhing wi thdravln " ilh out prejudice." Re-
spondent also consentedt iln ;an unelated ,,ttlecent
agreement to the right of the General ( ounscl to pro-
ceed to hearing based on the reinstated charge.
Therefore. Respondent was on notice that the charge
could bhe reinstated at a n time, and that once rein-
stated. could proceed to hearing.
FinallI. although Respondent wai not rp, p nsiblc
for the Region's mistaken belief' that it Iticked .i Ulrs-
diction,. we do not find that this sufficient reason lot)r
dismissing the complaint. As the B1oar1d noted n Ni/-
ver BaAerv, an administrative agenc\. charged with
the protection of the public interest. is certainl\ not
precluded from taking appropriate action to that end
because of mistaken action on its part in the past.
We therefore conclude that the General (ounsel did
not abuse his discretion in reinstalting the charge
herein and we shall den' Respondent's Motion for
Summary Judgment and allow the merits of the conm-
plaint to he decided following a hearing before an
administrattive law judge.
ORtER
It is hereby ordered that the Respondent's Motion
for Summary Judgment be. and it herebh, is. denied.
I IS FURliHER ORI)I RII) that a hearing hbe held be-
fore an administrative law judge to e designated hb
the Chief Administrative lxaw ludge for the purpose
of receiving evidence on the issues raised bh the alle-
gations of the complaint.
i IS FtR 1111 ()RII-RI I) that the above-entitled
proceeding be, and it hereb is, remanded to the Re-
gional Director for Region 32 for the purpose of ar-
ranging such hearing, and that the said Regional Di-
rector be, and he hereby is, authorized to issue such
notice thereof.
II IS t RIIER ()RI)RIiD that. upon the conclusio n
of the hearing, the administrative law judge shall pre-
pare and serve on the parties a decision containing
findings of fact, conclusions of law. and recommenda-
tions based upon the evidence received and that. tol-
lowing service of such decision on the parties. the pro-
visions of Section 102.46 of the Board's Rules and
Regulations, Series 8, as amended. shall he appli-
cable.
4 Supra at 426
1077