Central Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1979

239 N.L.R.B. 1270 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Enterprises, Inc.; Central Industries, Inc.;
Lawrenceville Industries, Inc. and International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, Local 819. Cases 25-CA-8153.
25-CA-8153-2, and 25-CA-8666
January 12, 1979
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On August 9, 1976, Local 819 of the International
Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC, filed a charge in Case 25-CA-8153
alleging, inter alia, that since April 21, 1976, the Re-
spondents had failed to bargain in good faith during
the period of negotiations for a new collective-bar-
gaining agreement, and that since August 6, 1976, the
Respondents had refused to meet with the Union for
the purpose of negotiating a new agreement. In addi-
tion, the charge alleged that the Respondents had
discriminated against employees at their Central In-
dustries, Inc., plant in Chandler, Indiana, by engag-
ing in a lockout; by announcing that production at
the Chandler plant would be terminated; by unilater-
ally treating employees at that plant as terminated
and not as a part of the bargaining unit; and by es-
tablishing a runaway plant and removing the work
performed from the jurisdiction of the Union.
In a subsequent charge filed with the Board on
September 28, 1976, in Case 25-CA-8153-2, Local
819 alleged that the Respondents had violated the
Act since April 15, 1976, by refusing to recognize the
Union as the employees' bargaining agent by dealing
directly with employees on an individual basis and
by moving parts and materials out of their plants and
out of the jurisdiction of the Union.
After conducting a full investigation, the Regional
Director for Region 25 notified the Charging Party
by letter dated November 30, 1976, that it appeared
that there was insufficient evidence that the Respon-
dents had violated the Act, and that he was refusing
to issue a complaint in Cases 25-CA-8153 and 25-
CA-8153-2. Further, the Regional Director advised
the Charging Party that it could obtain a review of
his decision by filing an appeal with the General
Counsel's Office of Appeals in Washington, D.C., by
the close of business on December 13, 1976. Further,
in his letter the Regional Director noted that any
request for an extension of time to file such an ap-
peal must also be submitted to the Office of Appeals
in Washington.
On December 13, 1976, the Charging Party sent a
telegram to the Office of Appeals requesting a 2-
week extention of time within which to file its appeal.
At the expiration of that 2-week period, on Decem-
ber 27, the Charging Party telegrammed the Office of
Appeals once again and requested another 2-week
extension of time, which expired on January 10,
1977. During a telephone conversation on January
31, approximately 21 days after the expiration of the
second extension of time to appeal, the Assistant Di-
rector of the Office of Appeals agreed orally to fur-
ther extend the time to appeal until February 14. In a
telegram dated February I, the Charging Party sub-
mitted its request for an extension of time to the Of-
fice of Appeals in writing.
The Charging Party filed its appeal with the Gen-
eral Counsel's Office of Appeals on February 14,
1977, and filed a charge in Case 25-CA-8666 the
same day. On February 25, the Office of Appeals
acknowledged receipt of the appeal. In addition, it
simultaneously notified the Charging Party that its
appeal would receive careful consideration and that
all interested parties would be advised of its decision
as soon as possible. The Office of Appeals then for-
warded a copy of its letter to the Respondents.
By letter dated January 31, 1978, the Regional Di-
rector for Region 25 notified the parties that he was
withdrawing and revoking his earlier dismissal of the
charges in Cases 25-CA-8153 and 25-CA-8153-2 on
the basis of subsequently discovered evidence, and
that he would proceed to institute formal proceed-
ings against the Respondents. On February 10, the
Regional Director issued an order consolidating
Cases 25-CA-8153, 25-CA-8153-2, and 25-CA-
8666, a consolidated complaint, and a notice of hear-
ing. On May 23, the Respondents filed with the
Board in Washington, D.C., a Motion for Summary
Judgment and a brief in support thereof, urging that
the complaint be dismissed under Section 10(b) of
the Act. On June 2, 1978, the Board issued an order
transferring the proceeding to the Board and a No-
tice To Show Cause why the Motion for Summary
Judgment should not be granted. Thereafter, the
General Counsel filed a response in opposition to the
Motion for Summary Judgment. The Respondents
then submitted a rebuttal to the General Counsel's
reply brief.
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.
Ruling on the Motion for Summary Judgment
In its motion, the Respondents contend that the
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CENTRAL ENTERPRISES, INC.
Regional Director's withdrawal and revocation of his
earlier dismissal of the charges in Cases 25-CA-8153
and 25-CA--8153-2 was improper and of no legal
force and effect because the Charging Party failed to
file a timely appeal of the Regional Director's dis-
missal. Respondents contend that the present com-
plaint, which is based in part on the dismissed
charges, must be dismissed under Section 10(b) of
the Act. Further, in their Motion for Summary Judg-
ment, Respondents emphasize that the allegations
contained in the charge in Case 25-CA-8666 and in
paragraphs 5 through 8 of the consolidated com-
plaint concern unfair labor practices which occurred
more than 6 months prior to the filing of the charge
in Case 25-CA-8666, and that for this additional rea-
son the present complaint must be dismissed under
Section 10(b) of the Act.
In support of its contention that no valid and time-
ly appeal was in existence at the time the Regional
Director revoked his earlier refusal to issue a com-
plaint, the Respondents stress that the Charging Par-
ty failed to serve them with a copy of their requests
for extensions of time or with the appeal itself, and
that the Charging Party's telegraphic requests for ex-
tensions of time of December 13 and 27, 1976, were
probably not received by the Office of Appeals by
those deadlines.' In addition, the Respondents con-
tend that the appeal filed on February 14, 1977, was
rendered invalid by the Charging Party's failure to
request an additional extension of time until 3 weeks
after its December 27, extension of time had expired
on January 10, 1977.2 Further, the Respondents con-
tend, inter alia, that the Charging Party's actions and
the Regional Director's lengthy delay in withdrawing
and revoking his earlier refusal to issue a complaint
have greatly prejudiced its defense of this proceed-
ing.
After carefully reviewing the entire record and all
briefs and documents filed by the parties, we have
concluded that the Respondents' Motion for Sum-
mary Judgment must be denied. Section 3(d) of the
Act expressly provides that the General Counsel
shall have final authority, on behalf of the Board,
I After filing a Freedom of Information Act request. the Respondents
determined that the copies of the Charging Party's December 13 and 27
telegrams contained in the files of the Office of Appeals do not bear the
customary receipt stamp indicating the date on which they were actually
received. The Office of Appeals did not grant or respond to the Charging
Party's December 13 and 27 requests for extensions of time.
During a telephone conversation on January 31, 1977, the Assistant
Director of the Office of Appeals granted the Charging Party a further
extension of time to appeal until February 14. By telegram dated February
I, the Charging Party submitted that request in writing to the Office of
Appeas.
with respect to the investigation of charges and the
issuance of complaints. Once a charge has been time-
ly filed within the meaning of Section 10(b), the Gen-
eral Counsel may properly relax the time provisions
of our procedural rules in appropriate cases, for he
acts in the public interest and not in vindication of
private rights.3 While the General Counsel's delay in
this case in deciding whether or not to issue a com-
plaint was unfortunate, Respondents concede that
they were put on notice in late February 1977 that an
appeal had been filed with the General Counsel and
that it would receive his careful consideration.
Hence, we have concluded that the Regional Direc-
tor did not abuse his discretion when on the basis of
newly discovered evidence he withdrew and revoked
his earlier refusal to issue a complaint in January
1978.4
ORDER
Accordingly, we hereby deny the Respondent's
Motion for Summary Judgment and remand this
case to the Regional Director for Region 25 for the
purpose of scheduling a hearing before an Adminis-
trative Law Judge.5
IT IS ORDERED that the Administrative Law Judge
shall prepare and cause to be served on the parties a
decision containing resolutions of the credibility of
witnesses, findings of fact, and recommendations to
the Board as to the disposition of said issues.
Within 20 days from the date of issuance of such
decision, either party may file with the Board in
Washington, D.C., eight copies of exceptions thereto.
Immediately upon the filing of such exceptions, the
party filing the same shall serve a copy thereof on the
other party. If no exceptions are filed thereto, the
Board will adopt the recommendations of the Ad-
ministrative Law Judge.
3N.LR.B. v. Albrirrton Engineering Corp.., 340 F.2d 281 (5th Cir. 1965);
N.L.R.B. v. Monsanto Chemical Company, 205 F.2d 763 (8th Cir. 1953). Sec.
102.19(a) of the Board's Rules and Regulations expressly provides that con-
sideration of an appeal untimely filed is within the discretion of the General
Counsel upon good cause shown
4 The newly discovered evidence included evidence that Respondents ille-
gally concealed their lockout at the Chandler. Indiana. facility through De-
cember 14. 1976. and that in February and December 1977 Respondents
unilaterally changed the wage rates and other terms and conditions of em-
ployment at their Lawrenceville, Illinois, facility.
On June 5, 1978, the Respondents submitted a petition to the Board
requesting that several subpenas issued by the General Counsel be revoked
because the General Counsel had failed to limit the scope of those subpenas
to evidence relevant to the allegations contained in the complaint. In re-
sponse, the General Counsel informed the Board that the subpenas had
been withdrawn. subject to relssuance once a new heanng date was estab-
lished, and urged that the petition be denied as moot. Inasmuch as the
General Counsel has withdrawn the subpenas in question, we hereb) deny
the Respondent's petition without prejudice.
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