Facet Enterprises, Inc.

National Labor Relations Board - Board Decisions

Jul 21, 1988

289 N.L.R.B. 984 (N.L.R.B. 1988)

984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Purolator Products, Inc. and its successor Purolator
Products, Inc., Division of Facet Enterprises,
Inc. and United Paperworkers International
Union, AFL-CIO, CLC. Case 11-CA-12446
July 21, 1988
DECISION AND ORDER
BY MEMBERS JOHANSON, BABSON, AND
CRACRAFT
Upon a charge filed by the Union on July 21,
1987, the General Counsel for the National Labor
Relations Board issued a complaint on December
10, 1987, against the Respondent, alleging that it
has violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on January 23, 1987,
Supervisor Leonard Barber solicited an employee
to circulate and obtain other employees' signatures
on a petition to decertify the Union; that in mid-
March 1987, Barber instructed an employee to pro-
vide false information in the event of an inquiry
concerning the origins of the petition to decertify
the Union; and that also in mid-March, Barber so-
licited an employee to refuse to cooperate with a
Board agent during an investigation concerning the
origins of a petition to decertify the Union. The
complaint alleges that by these acts the Respondent
has violated Section 8(a)(1) of the Act. The com-
plaint further alleges that on February 2, 1987, the
Respondent violated Section 8(a)(5) and (1) of the
Act by withdrawing recognition from the Union as
the exclusive collective-bargaining representative
of unit employees, based on a decertification peti-
tion that had been obtained through the unlawful
assistance of the Respondent, and by refusing to
bargain in good faith with the Union since that
date.
On December 16, 1987, the Respondent filed its
answer admitting in part and denying in part the
allegations in the complaint , and raising affirmative
defenses. As an affirmative defense, the Respondent
contends that the complaint is barred by prior liti-
gation in consolidated Cases 11-CA-12071, 11-
CA-12084, 11-CA-12117, and 11-CA-12288 (col-
lectively Case 11-CA-12071 et al.) and that the
complaint should be dismissed.'
On December 22, 1987, the Respondent filed a
Motion for Summary Judgment and a brief in sup-
port thereof and in opposition to the General
Counsel's motion to remand with exhibits attached,
i On December 14, 1987, the General Counsel filed a motion to
remand proceedings to the administrative law judge to reopen record,
consolidate cases, and conduct hearing in Case 1I-CA-12071 et al In
that motion the General Counsel sought to consolidate the instant case
with Case I1-CA-12071 et al
renewing its contention that the complaint was
barred by the prior litigation of the issue of with-
drawal of recognition in Case 11-CA-12071 et al.
The Respondent also contends that in the prior liti-
gation the General Counsel specifically disavowed
the theory of withdrawal of recognition, which she
now attempts to resurrect.
On January 6, 1988, the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not
be granted. The General Counsel filed a response,
alleging that the facts in the instant case were un-
known to the General Counsel and the Charging
Party and could not have been readily discovered
by either party prior to the May 18 and 19, 1987
trial of Case 11-CA-12071 et al.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the Motion for Summary Judgment
The undisputed facts show that a petition to de-
certify the Union was circulated among the Re-
spondent's employees during December 1986 and
January 1987. On February 17, 1987, the Union
filed a charge in Case 11-CA-12288 alleging, inter
alia, that the Respondent had unlawfully with-
drawn recognition from the Union on February 2,
1987. On April 30, 1987, the General Counsel
issued a consolidated complaint which consolidated
Case 11-CA-12288 with Cases 11-CA-12071, 11-
CA-12084, and 11-CA-12117 and which alleged,
inter alia, that "[o]n or about February 2, 1987,
[Respondent] unlawfully withdrew recognition
from the Union." On May 18, 1987, at the start of
the hearing in Case 11-CA-12071 et al., the Gener-
al Counsel stipulated that she did not "contend that
the Respondent unlawfully assisted or encouraged
the [decertification] petition with respect to this
proceeding." The General Counsel further stipulat-
ed that "[t]he only issue concerning the withdrawal
of recognition" allegation of the complaint "is
whether Respondent was entitled to rely on the pe-
tition in light of the other unfair labor practices"
alleged.
On July 21, 1987, the Union filed the charge in
the instant proceeding (Case 11-CA-12446), alleg-
ing that the Respondent unlawfully assisted or en-
couraged employees in circulating the decertifica-
tion petition. In a letter dated July 24, 1987, the
Respondent requested dismissal of the charge,
citing Jefferson Chemical Co., 200 NLRB 992
(1972).2 On August 25, 1987, the Regional Direc-
2 In Jefferson Chemical Co, the Board adopted the judge 's grant of the
respondent 's Motion for Summary Judgment and dismissal of a com-
Continued
289 NLRB No. 99
PUROLATOR PRODUCTS 985
tor, citing Jefferson Chemical Co., refused to issue a
complaint , asserting that the evidence presented, in
whole or in part , was known or could have been
known to the General Counsel at the time Case 11-
CA-12071 et at. was being litigated . The Union ap-
pealed the Regional Director 's refusal to issue a
complaint , and the appeal was sustained . Thereaf-
ter, the Regional Director issued the complaint at
issue here . As stated above, the instant complaint
alleges that the Respondent violated Section 8(a)(1)
by certain statements made to employees in Janu-
ary and March 1987 and that the Respondent vio-
lated Section 8(a)(5) by withdrawing recognition
from the Union on February 2, 1987.
In its Motion for Summary Judgment , the Re-
spondent contends that Jefferson Chemical Co. bars
the General Counsel from relitigating the issue of
the Respondent's withdrawal of recognition from
the Union . In her motion opposing summary judg-
ment , the General Counsel asserts:
During the course of the investigation in Case
No. 11-CA-12446, evidence was presented
which conclusively demonstrated that during
the 10(b) period, admitted supervisor Leonard
Barber had asked an employee to sign the de-
certification petition , directed her to get other
employees to sign the petition and instructed
the employee to deliberately falsify informa-
tion if anyone from the Union or the Board
asked about his involvement with such peti-
tion.
The General Counsel contends that during the in-
vestigation of Case 11-CA-12288 the Regional Di-
rector was only aware that an employee had signed
the petition and had asked others to do the same;
and that , while not compelled to do so, the Re-
gional Director unsuccessfully attempted to contact
the employee . Thus, the General Counsel argues
that the evidence of "supervisory taint" was un-
known to both the General Counsel and the Charg-
ing Party and could not have been readily discov-
ered by either party prior to the May 18 and 19,
1987 trial of Case 11-CA-12071 et al. The General
Counsel further argues that the evidence in the in-
plaint , which alleged that the Respondent had engaged in surface bar-
gaining in violation of Sec. 8(a)(5) of the Act. The judge found that the
complaint was based on events that were , or should have been , known to
the General Counsel through the investigation of a broad refusal -to-bar-
gain allegation in a prior charge . The Board held that the General Coun-
sel is dutybound to investigate all matters that are encompassed by the
charge and to proceed appropriately thereafter . The Board stated that
"multiple litigation of issues which should have been presented in the ini-
tial proceeding constitutes a waste of resources and an abuse of our proc-
esses ...... 200 NLRB at 992 fn. 3.
stant case, if credited , would establish that the Re-
spondent urged an employee to mislead the Union
and the Board if inquiries were made about the su-
pervisor's involvement with the petition . The Gen-
eral Counsel contends that because the Respondent
played an active part in suppressing the evidence, it
can not equitably or legally argue for its exclusion.
Relying on Jefferson Chemical Co., supra, we
conclude that the Respondent is entitled to summa-
ry judgment as a matter of law . The uncontrovert-
ed facts establish that on February 17, 1987, the
Union filed a charge in Case 11-CA- 12288 , alleg-
ing that the Respondent withdrew recognition
from the Union in violation of Section 8(a)(5); that
the General Counsel investigated that charge and
issued a complaint containing an unlawful with-
drawal of recognition allegation ; and that at the
May 18, 1987 hearing the General Counsel specifi-
cally declined to pursue any contention that the
Respondent unlawfully assisted or encouraged the
decertification petition that formed the basis for the
withdrawal of recognition . Nevertheless, the Gen-
eral Counsel now seeks in the instant complaint to
relitigate the withdrawal-of-recognition issue rely-
ing on the theory she previously disavowed and on
events occurring prior to the May 18, 1987 hear-
ing. Under Jefferson Chemical, "such multiple liti-
gation of issues which should have been presented
in the initial proceeding " is not permitted.3
We therefore conclude that the instant complaint
is based on events which took place prior to the
May 18, 1987 hearing in Case 11-CA-12071 et al.
and which were , or should have been , known to
the General Counsel by virtue of her investigation
of the charge in Case 11-CA-12288 . Accordingly,
the complaint must be dismissed on the authority
of Jefferson Chemical Co.
ORDER
It is ordered that the Respondent's Motion for
Summary Judgment be granted and the complaint
is dismissed.
3 We note that, as stated above , the Regional Director initially refused
to issue a complaint on the basis of the instant charge specifically because
the evidence presented was known or could have been known to the
General Counsel at the time Case 1l -CA-12071 et al. was litigated.
Member Cracraft additionally notes that the General Counsel has not
shown by any admissible evidence that this case would fall outside the
scope of Jefferson Chemical Co. As set forth in Rule 56(e) of the Federal
Rules of Civil Procedure, the General Counsel must rely on more than
the bare allegation that the evidence in the instant case was unknown to
the General Counsel and was not readily discoverable prior to the hear-
ing in Case 11-CA-12071 et al. Thus, in Member Cracraft's view, the
General Counsel 's failure to attach a supporting affidavit or exhibit to the
motion opposing summary judgment precludes fording a genuine issue as
to any material fact.