Consumers Distributing

National Labor Relations Board - Board Decisions

Feb 25, 1985

274 N.L.R.B. 346 (N.L.R.B. 1985)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consumers Distributing Company , Limited d/b/a
Consumers Distributing and Warehouse, Mail
Order , Retail Employees Union , Local No. 853,
International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America.
Case 32-CA-5460
25 February 1985
ORDER DENYING APPEAL
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 June 1984 Administrative Law Judge
Gordon J. Myatt issued the attached Order Grant-
ing Motion to Withdraw Complaint. The Charging
Party filed a request for review, exceptions, and a
supporting brief. The Respondent filed a brief in
opposition to the Charging Party's request for
review and exceptions.
The judge, in granting the General Counsel's
posthearing motion for permission to withdraw the
complaint, found that the motion was a legitimate
exercise of the General Counsel's prosecutorial au-
thority under Section 3(d) of the Act to determine,
even after a hearing, that the "legal underpinnings"
of the complaint no longer existed as a result of the
recent Board decisions in Milwaukee Spring Divi-
sion, 268 NLRB 601 (1984), and Otis Elevator Co.,
269 NLRB 891 (1984). We agree. Therefore, treat-
ing the Charging Party's request for review and ex-
ceptions as an interim appeal of a ruling of an ad-
ministrative law judge under Section 102.26 of the
Board's Rules,' we shall deny the appeal because
we find that the judge did not act arbitrarily or ca-
priciously or otherwise abuse his discretion in
granting the General Counsel's motion.2
The Board, having duly considered the matter,
IT IS HEREBY ORDERED that the Charging Party's
appeal from the judge's granting of the General
i The judge and our dissenting colleague have characterized the Gen-
eral Counsel's motion as "in the nature of a motion to dismiss the com-
plaint in its entirety" which contemplates a ruling based on the merits,
and which, if granted before the issuance of a judge's decision, is re-
viewable under Sec 102 27 of the Board's Rules upon timely request We
disagree with that characterization of the General Counsel's motion to
withdraw the complaint in this case Under Sec 102 27, the judge's action
results in the case being closed unless reversed by the Board Fiere, how-
ever, the judge's action would not result in the case being closed because
the underlying charge is still alive
2 Cf Greyhound Lines, 235 NLRB 1100 (1978), and Graphic Arts
(Mueller Color), 230 NLRB 1219 (1978) We note that in Greyhound Lines
the Board issued a "Decision and Order," and in Mueller Color it issued a
"Decision on Review " Here, however, unlike in those cases , the judge's
granting of the General Counsel's motion did not constitute a "decision"
reached after a determination, on the merits , that the complaint could not
prevail Accordingly, Greyhound Lines and Mueller Color do not compel
the issuance of a Board "decision" in this case
Member Hunter agrees that Greyhound Lines and Mueller Color are in-
applicable, and finds it unnecessary to pass on the validity of those deci-
sions
Counsel's motion for permission to withdraw the
complaint is denied.
MEMBER DENNIS, dissenting in part.
I agree with the majority that the General Coun-
sel's motion to withdraw the complaint should be
granted. I do not agree, however, that the Charg-
ing Party's request for review and exceptions
should be treated as an "interim appeal" under Sec-
tion 102.26 of the Board's Rules. Instead, I agree
with the judge that the General Counsel's motion
is "in the nature of a motion to dismiss the com-
plaint in its entirety" within the meaning of Section
102.27 of the Board's Rules and that the judge's
granting of such a motion before issuing his deci-
sion is fully reviewable by the Board and, ultimate-
ly, by a court of appeals. Where, as here, a case
has been tried and briefed, the Charging Party
should not be foreclosed from judicial review by a
hypertechnical construction of the Board's Rules.
ORDER GRANTING MOTION TO
WITHDRAW COMPLAINT
1. PRELIMINARY STATEMENT
Hearing in the above-captioned matter was held in
Oakland, California, on January 16, 17, and 18, 1984.
Based on the allegations of the complaint and representa-
tions of counsel for the General Counsel, the case was
litigated on two discrete theories: (1) that Respondent
moved its warehouse and distribution center from Hay-
ward, California, to Sparks, Nevada, during the term of
an existing collective-bargaining agreement without
asking for or receiving consent from the Union to do so;
and (2) that Respondent unilaterally made and imple-
mented its relocation decision without first notifying and
affording the Union an opportunity to negotiate concern-
ing the relocation, which was alleged to be a mandatory
subject of bargaining.
The first theory relied on the Board's decision in Mil-
waukee Spring (Milwaukee Spring I), 265 NLRB 206
(1982) Shortly after the hearing in the instant case was
closed, the Board issued its decision in Milwaukee Spring
II in which it reversed the prior holding of Milwaukee
Spring I. Milwaukee Spring, 268 NLRB 601 (1984). On
filing her brief in the instant matter, counsel for the Gen-
eral Counsel took note of the Board's decision in Mil-
waukee Spring II and moved to amend the complaint to
withdraw the allegations premised on the rationale of the
predecessor Milwaukee Spring I case.
After briefs were submitted herein but prior to issu-
ance of a decision, the Board issued its recent decision in
Otis Elevator Co. (Otis Elevator II), 269 NLRB 891
(1984), which addressed the issues presented by the Gen-
eral Counsel's remaining theory in the instant case. Re-
spondent thereupon filed a notice of recent case calling
attention to the holding in Otis Elevator IT The General
Counsel requested and was granted leave to file a supple-
mental brief addressing the impact of Otis Elevator II on
the issues presented by the instant case. In lieu of a sup-
274, NLRB No. 50
1
CONSUMERS DISTRIBUTING
plemental brief, however, counsel for the General Coun-
sel filed a motion for permission • to withdraw the com-
plaint urging that the holding in Otis Elevator II con-
trolled the disposition of the instant case. Pursuant to an
order to show cause, the Charging Party filed an opposi-
tion to and Respondent filed a statement in support of
the General Counsel's motion.
II. CONTENTION OF THE PARTIES
As noted, the General Counsel now urges that the re-
maining issues in the instant case are controlled by the
Board 's recent decision in Otis Elevator II Therefore, ac-
cording to the General Counsel, "It is no longer appro-
priate to allege Respondent's relocation to Sparks,
Nevada, without bargaining with the Charging Party, as
a violation of Section 8(a)(1) and (5) of the Act."
The Charging Party, on the other hand, argues that
withdrawal of the complaint at this stage "would effec-
tively deprive [it] of procedures otherwise available to
take the case to the Board on exceptions, and thereafter
to file a petition for review under Section 10(f) of the
Act in the event of Board concurrence in a dismissal."
The Charging Party asserts this is especially true since a
court decision of the court of appeals for this judicial cir-
cuit suports the remaining theory on which the com-
plaint was litigated . Los Angeles Marine Hardware v.
NLRB, 602 F.2d 1302 (9th Cir. 1979). Thus, withdrawal
of the complaint would prevent "access to a judicial
forum to test the validity of a Board ruling which ap-
pears to conflict with existing court decisions." In addi-
tion , the Charging Party argues that the request to with-
draw relates to the "legal merit" of the issues before the
administrative law judge and that it is his responsibility
to determine them on the merits.
Respondent, in support of the motion to withdraw,
argues , in essence , that the General Counsel is empow-
ered as the presecuting authority to issue, refuse to issue,
and/or withdraw complaints previously issued. Further,
that the General Counsel's actions in this regard are con-
trolled by the Board's decisions on the applicable law.
Therefore, the Charging Party posits that since the
Board has "repudiated both theories" under which the
347
General Counsel issued the complaint, the General
Counsel is without authority to further prosecute, the
matter.
III. RULING ON THE MOTION
Considering the respective positions urged by the par-
ties, I am persuaded that the motion requesting permis-
sion to withdraw the complaint should be granted. Con-
trary to the implications contained in Respondent's state-
ment of support, I do not find the General Counsel's
prosecutorial authority in this case under Section 3(d) of
the Act came to an end as a result of the Board's recent
decisions in Milwaukee Spring II and Otis Elevator IT
Rather, I consider it to be a legitimate exercise of this
very authority to determine, even after a hearing, that
the legal underpinnings of the complaint no longer exist
as a result of the recent Board decisions and to request
permission not to prosecute the case. Compare Machin-
ists v. Lubbers, 681 F.2d 598 (1982). Nor does the Charg-
ing Party's contention that such action precludes it from
obtaining review before the Board and the courts per-
suade otherwise. Although the Charging Party asserts
that withdrawal of the complaint will result in the
charge being dismissed by the Regional Director and
that concurrence of such action by the General Counsel
is not reviewable, that is not necessarily the situation in
the instant case . Under Section 102.27 of the Board's
Rules and Regulations, the motion herein is in the nature
of a motion to dismiss the complaint in its entirety and
an order granting such motion before the administrative
law judge's decision is filed is reviewable by the Board
upon timely request by the Charging Party. Thus, the
Charging Party is not foreclosed from Board review nor
judicial review in the event the Board's final order is un-
favorable to it.
In light of the above, it is ordered that General Coun-
sel's motion for permission to withdraw the complaint
herein is granted.
IT IS FURTHER ORDERED that the above-captioned case
is referred to the Regional Director for Region 32 for
such disposition as he deems just and proper.