Green Construction

National Labor Relations Board - Board Decisions

Sep 7, 1984

271 N.L.R.B. 1503 (N.L.R.B. 1984)

GREEN CONSTRUCTION
Green Construction of Indiana, Inc.' and Laborers'
International Union of North America, Local
Union No. 1214, AFL-CIO. Case 9-CA-16113
7 September 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 31 August 1982 Administrative Law Judge
James J. O'Meara Jr. issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a brief in
opposition to the General Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The judge dismissed the complaint in its entirety.
In so doing, the judge found no evidence connect-
ing the Respondent with the conduct alleged to be
violative in the complaint. Further, the judge
denied as untimely the General Counsel's motion to
amend the complaint to substitute Robert E. Green
as the Respondent and to reopen the record to in-
troduce evidence that Robert E. Green and the Re-
spondent may be a single employer of the employ-
ees involved in this case. In this regard, the judge
noted that at the opening of the hearing counsel for
the Respondent raised the issue of the Respondent's
identity. At that time the General Counsel did not
seek to amend the complaint. Later in the hearing,
the judge questioned Robert E. Green about his re-
lationship to the Respondent and about the Re-
spondent's relationship to the project involved in
this case. When Robert E. Green answered that the
Respondent had no relationship to the project, the
judge turned to the parties and asked, "Any ques-
tions prompted by my questions, gentlemen?" The
response was negative. Again, the General Counsel
did not seek to amend the complaint. The judge
also advised the parties that if they sought amend-
ment they should do so prior to the close of the
hearing. The General Counsel did not seek amend-
ment at that time. It was not until more than 7
months after the close of the hearing that the Gen-
eral Counsel first sought to amend the complaint.
Under the circumstances, the judge found that the
issue of the proper identity of the Respondent was
brought to the General Counsel's attention at the
hearing and that the posthearing motion to amend
i The Respondent's name appears as corrected.
271 NLRB No. 217
the complaint to allege Robert E. Green as the Re-
spondent and to reopen the record to introduce
evidence that Robert E. Green and the Respondent
may be a single employer of the employees in this
case was "so tardy that basic fairness requires that
it be denied."
We agree with the judge's reasoning in denying
the General Counsel's motion to amend the com-
plaint. In addition, we note that Section 102.17 of
the Board's Rules provides that amendment of
complaints is permitted "upon such terms as may
be deemed just." We conclude that it would not be
"just" to allow amendment of the complaint in the
circumstances here. The General Counsel was re-
peatedly apprised of the problem of the proper
identity of the Respondent but did nothing for
more than 7 months. Further, it is our view that to
allow amendment at such a late date would cause
Robert E. Green undue prejudice. The interests of
Robert E. Green as an individual are not identical
with the interests of the corporation, Green Con-
struction of Indiana, Inc. In fact, their interests
could be adverse. While the complaint referred to
Robert E. Green, it did so only to allege him as an
agent of Green Construction of Indiana, Inc., and
while Green was on actual notice of certain facts,
he was certainly not on actual notice that he might
be subject to individual liability in this case. Fur-
thermore, counsel for Green Construction of Indi-
ana, Inc. did not appear at the hearing on behalf of
Robert E. Green as an individual. Finally, there
might have been witnesses that Robert E. Green
would have sought to call on his own behalf that
he did not call because he had not been charged
and there might have been evidence he would have
sought to introduce that he did not introduce be-
cause he had not been charged. Accordingly, we
believe that to allow amendment at this late date
would work substantial injustice against Robert E.
Green and conclude that the judge properly denied
the General Counsel's motion to amend the com-
plaint. 2
2 Contrary to our dissenting colleague, we do not find that practice
under Fed.R.Civ.P. IS requires a contrary result. Under Sec. 10(b) of the
Act the Federal Rules of Civil Procedure are to be followed "as far as
practicable," and the Board has not considered itself bound to apply case
law interpreting these rules in Board proceedings. Furthermore, the cases
relied on by our colleague are distinguishable in that none involves a
posttrial attempt to amend a pleading to substitute a new defendant.
In view of our denial of the General Counsel's motion to amend the
complaint, we also deny the General Counsel's motion to reopen the
record to introduce evidence that Robert E. Green and the Respondent
may be a single employer of the employees in this case. Additionally, in
denying the latter motion, we note it is untimely and does not allege that
the General Counsel has obtained newly discovered or previously un-
available evidence.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER ZIMMERMAN, dissenting.
My colleagues today affirm the administrative
law judge's dismissal of a complaint because the
General Counsel failed to amend it at the hearing
to correctly identify the Respondent. They also
affirm the judge's denial of the General Counsel's
motion to amend the complaint made after the
hearing but prior to the issuance of the decision.
By so doing, the majority on a mere technicality,
and absent any showing of prejudice, allows the al-
leged unfair labor practices of the Respondent to
escape the Board's scrutiny and go unremedied.
The complaint which issued on 27 March 1981
alleges that Green Construction of Indiana, Inc. re-
fused to bargain with the Union concerning work
on a construction site. In its answer, the Respond-
ent admitted that Robert E. Green was the owner
and president/treasurer of Green Construction of
Indiana, Inc. At the hearing, counsel for the Re-
spondent acknowledged that the contract in issue
was signed by Robert E. Green, not Green Con-
struction, but also made the following statement
concerning the relationship of the two:
I think it is significant only in terms of the
evidence which will be heard. We are not
making a claim in the fact we think it would
be appropriate that the pleadings should be
Robert E. Green as opposed to Green Con-
struction of Indiana, Inc., because of the fact
that Robert E. Green was who signed this
original contract upon to which we are alleg-
edly bound .... [W]e are not trying to make
any claims other than there is a confusion that
it should be pointed out that at various times
that the evidence may say at some times, but I
think by both sides, Green Construction or it
may say Robert E. Green.
At no time did the Respondent contend that the
pleadings should be modified. Green himself par-
ticipated in the proceedings and testified concern-
ing the alleged violations growing out of the con-
tract he had signed. He did so without disavowing
his relationship with the Respondent. When the
judge asked him what the relationship was between
Green Construction of Indiana, Inc. and the work-
site governed by the contract, Green said there
was no relationship, yet he continued throughout
the litigation to address the substantive issues draw-
ing no distinction between the two names. As the
General Counsel argues and the Respondent does
not dispute, even in its posthearing brief to the
judge, the Respondent did not raise the issue of
proper designation.
In his decision, the judge concluded that the
General Counsel was on notice of the defect in the
pleadings and fairness required that the inaccuracy
of the complaint be corrected while litigation was
ongoing. He based his conclusion on the muddled
testimony cited above and his own colloquy with
Green concerning the relationship between Green
Construction and the disputed worksite. He ended
his examination of Green with a question to coun-
sel, "Any questions, prompted by my inquiry, gen-
tlemen?" The judge identified this cryptic inquiry
as evidence that the General Counsel had notice of
the complaint's shortcomings.
It is the General Counsel's contention that be-
cause the Respondent itself was untroubled by the
designation, the General Counsel believed a correc-
tion of the complaint to be unnecessary. Both the
Respondent and the General Counsel acknowl-
edged in briefs to the Board that, 7 months subse-
quent to the hearing in July 1982, the judge spoke
with the parties by telephone. According to the
Respondent, he informed them that there was no
evidence that the Respondent, as named, Green
Construction of Indiana, Inc., had committed an
unfair labor practice. The General Counsel claims
only that the judge had a question with respect to
the designation of the Respondent. Almost immedi-
ately, the General Counsel filed his motion to
reopen the record and amend the complaint.' The
judge denied the motion and dismissed the com-
plaint stating that an amendment at so late a date
was "so tardy that basic fairness requires that it be
denied."
The Board's Rules and Regulations allow a com-
plaint to be amended subsequent to a hearing. Sec-
tion 102,17 provides as follows:
Amendment.--Any such complaint may be
amended upon such terms as may be deemed
just, prior to the hearing, by the regional di-
rector issuing the complaint; at the hearing
and until the case has been transferred to the
Board pursuant to section 102.45, upon
motion, by the administrative law judge desig-
nated to conduct the hearing; and after the
case has been transferred to the Board pursu-
ant to section 102.45, at any time prior to the
issuance of an order based thereon, upon
motion, by the Board.
The majority relies heavily on the 7-month delay between the close
of hearing and filing of the General Counsel's motion. In fact, the Gener-
al Counsel responded promptly when notified of a possible defect. In any
case, the motion was filed a full month before the judge issued his deci-
sion.
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GREEN CONSTRUCTION
This rule is consistent with Federal practice where
"leave [to amend pleadings] shall be freely given
when justice so requires." 2 As to the failure to
name a proper party defendant, the propriety of an
amendment turns on the identity of the parties, and
the prejudice, if any, to the correct party from the
failure to name it originally. Generally, sufficient
prejudice to warrant dismissal will not be found if
the added defendant has had sufficient notice of the
institution of the action, whether formal or infor-
mal, within the limitations period or if a sufficient
identity of interest exists between the new defend-
ant and the original defendant. Norton v. Interna-
tional Harvester Co., 627 F.2d 18 (7th Cir. 1980).
Thus, if the defendant sought to be brought in
knew, or should have known, of the action from
the beginning, no prejudice will ordinarily result
from the amendment. Bryant Electric Co. v. Joe
Rainero Tile Co., 84 F.R.D. 120 (W.D. Va 1979).
The Board's judgment in cases where the party
is improperly identified is similar. The complaint is
not dismissed where the proper respondent has
actual notice of allegations proceeding.
Over 30 years ago the Board addressed the prob-
lem of misnomer in a complaint. Responding to the
respondent's contention of improper service in Pe-
terson Construction Co., 106 NLRB 850, 851 (1953),
the Board stated:
Where, as here, the error is one of misnomer
and the proper Respondent has actual notice
of the charge and of the obvious misnomer, to
hold the statutory requirements of service are
not met is to project legalism to an unwarrant-
ed length.
The Board emphasized in its discussion that the
Respondent had not been misled or prejudiced by
the proceeding. This position has consistently been
expressed in subsequent decisions. American Geriat-
ric Enterprises, 235 NLRB 1532 (1978); Rosco Con-
crete Pipe Co., 219 NLRB 915 (1975); American
Steamship Co., 222 NLRB 1226, 1231 (1976).
The principle at issue in these cases applies with
equal force here. Green received actual notice of
the charge against him. As the owner, president,
and treasurer of Green Construction, as well as the
representative for purposes of service, he was
aware of the allegations raised against him. His par-
ticipation in the hearing is added proof of that
awareness. As to the question of identity of inter-
ests, even as the Respondent presented its case it
drew no distinction between the interests of Rich-
ard E. Green and those of Green Construction of
Indiana, Inc. Given the virtual identity of the two,
that is not suprising.
There is yet another reason for finding the Gen-
eral Counsel's motion to be proper. The party op-
posing the motion to amend the complaint carries
the burden of asserting and showing that the
amendment will be prejudicial. That is the case in
Federal court as well as before the Board. 3 The
Respondent has failed to show how it will be prej-
udiced by the amendment. In its brief in support of
the judge's decision, the Respondent says permit-
ting the motion violates "all established concepts of
fairness and due process." Save for this bald asser-
tion, the brief is bereft of any suggestion of preju-
dice that would result were the motion to be grant-
ed. My colleagues, however, are willing to prove
all forms of prejudice through speculation. The ma-
jority opinion proclaims a veritable litany of hor-
rors that could befall Green were the General
Counsel's motion to be granted. I am unconvinced.
There is nothing before us to substantiate a claim
of prejudice.
Accordingly, I would grant the General Coun-
sel's motion to amend the complaint and remand
the case to the judge to consider the merits of the
case in light of the amendment.
a Goodman v. Poland, 395 F.Supp. 660 (D.C.Md. 1975). Tabacalera
Cubana. S.A. v. Faber. Coe & Gregg. Inc. 379 FSupp 772 (S D N.Y.
1974).
DECISION
STATEMENT OF THE CASE
JAMES J. O'MEARA JR., Administrative Law Judge.
The complaint in this case was issued on March 27, 1981,
and is based on a charge filed against the Respondent on
November 21, 1980, by the Laborers' International
Union of North America, Local Union No. 1214, AFL-
CIO (the Union). The complaint alleges, in essence, that
the Union is the exclusive representative of certain desig-
nated employees of the Respondent and the Respondent
has refused to bargain collectively with the Union and is,
therefore, guilty of engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
The Respondent denies that it has violated the Act.
The matter was heard in Paducah, Kentucky, on De-
cember 17, 1981. At the close of the hearing the parties
waived oral argument and were given leave to file briefs
which have been received and considered.
In consideration of the entire record in this case, in-
cluding all competent oral and written evidence, the ob-
served demeanor of the witnesses, and the briefs and ar-
guments of counsel, I make the following
2 Fed.R Civ.P. 15
1505
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Respondent, Green Construction Company of In-
diana, Inc., is an Indiana corporation with an office and
principal place of business in Oaktown, Indiana, and has
been engaged as a general contractor in the building and
construction industry in the State of Indiana and Ken-
tucky. During the past 12 months, a representative
period, Respondent, in the course and conduct of busi-
ness operations, performed services valued in excess of
$50,000 in States other than the State of Indiana. During
this same period, the Respondent, in the course and con-
duct of such business, purchased and received at its Oak-
town, Indiana facility products, goods, and materials
valued in excess of $500,000 directly from points outside
the State of Indiana.
The Respondent is now, and has been at all times ma-
terial herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and
I find that it will effectuate the policies of the Act to
assert jurisdiction in this case. I
II. THE LABOR ORGANIZATION
Laborers' International Union of North America,
Local Union No. 1214, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
On November 21, 1980, a charge was filed against the
Respondent, Green Construction Company of Indiana,
Inc., by Laborers' International Union of North Amer-
ica, Local Union No. 1214, AFL-CIO. The charge al-
leged that the corporate employer "refused to bargain
collectively with the undersigned labor organization . . .
on the construction of the Executive Inn and Convention
Center in Paducah-McCracken County, Kentucky." A
copy of the charge was served on the Respondent by
certified mail and a receipt showing delivery was given
by one M. Chasteen. Subsequently, and on March 27,
1981, a complaint based on the charge was issued and a
copy thereof was served by regular mail upon Green
Construction Company of Indiana, Attn: Robert Green
Sr. The complaint, as stated above, alleges that the cor-
porate Respondent violated Section 8(a)(5) of the Act by
refusing to bargain with the Union for a contract cover-
ing employment of laborers. The evidence adduced at
the hearing disclosed a contract for "Site Demolition and
Clearing-Paducah-McCracken County Convention
Center Site," between the owner, Paducah-McCracken
County Convention Center Corporation, Paducah, Ken-
tucky and the contractor, Robert E. Green. During the
performance of this contract and on April 25, 1980,
Robert E. Green entered into a written adoption agree-
' The Respondent amended its answer to the complaint at the opening
of the hearing. The amendments admitted the allegations of the complaint
which alleged facts giving rise to the Board's jurisdiction over the Re-
spondent and the subject matter of this case.
ment with the Union which agreement expired on April
30, 1982.2
Subsequent to the demolition phase of the project a
construction agreement was entered into with the Con-
vention Center Corporation whereunder the contractor
was Robert E. Green, not the Respondent. During the
execution of the construction contract exchanges of pro-
posed labor contracts were made between Green and the
Union. One of said documents entitled "Project Agree-
ment for Construction" on the construction project in
Paducah, Kentucky, recited that the proposed contract
was between Robert E. Green and the Western Ken-
tucky Building and Construction Trades Counsel, AFL-
CIO. Another was entitled "Unions Agreement for Con-
struction of the Executive Inn and Convention Center,
Paducah, Kentucky" and also was a proposal for a con-
tract between Robert E. Green and the Western Ken-
tucky Building and Construction Trades Counsel, AFL-
CIO.
The business manager for the Union, T. E. Holden, ne-
gotiated for a contract with Robert E. Green and his at-
torney, Arthur R. Donovan. No dealings were conduct-
ed by or with the Respondent.
It is uncontradicted from the evidence of record in this
case that the Respondent, Green Construction Company
of Indiana, Inc., a corporation, was not the employer in
the instant matter. On the contrary, the evidence dis-
closed that Robert Green, an individual, was the entity
who performed the acts alleged in the complaint to be
violations of Section 8(a)(5) of the Act. Neither the
charge which underlies the complaint nor the negotia-
tions between the Union and Green were transactions of
the corporate Respondent. Accordingly, there is no evi-
dence in this record which would support any relief de-
manded by the General Counsel against the Respondent,
Green Construction Company of Indiana, Inc.
The General Counsel's Motion to Reopen the
Record for Further Hearing
The General Counsel has moved for an order reopen-
ing the record for further hearing. The basis for the Gen-
eral Counsel's motion is his contention that "Green Con-
struction Company of Indiana, Inc., Robert E. Green, a
sole proprietor," and "Robert E. Green, a contractor,"
may be a single employer of the employees involved in
this proceeding.
The charge and the complaint, based on the charge,
were specifically made against Green Construction Com-
pany of Indiana, Inc. The evidence clearly establishes ac-
tivities conducted by Robert E. Green and/or his attor-
neys.
At the onset of the hearing on the complaint and pre-
liminary to the taking of any evidence, the Respondent's
counsel raised the issue of the identity of the Respondent
when he advised at the hearing that, "It would be appro-
priate that the pleading should be Robert E. Green as
opposed to Green Construction Company of Indiana,
2 The contract adopted by Green was a contract between the Union
and West Kentucky Construction Employers Association, Inc. Neither
Green nor the Respondent was a member of the Association.
1506
GREEN CONSTRUCTION
Inc." The parties were further ::-; * , . me in this
regard as follows:
I only suggest that in the e.-.i d' rie . lose of the
hearing or sometime prior to .- " mn amend-
ment is necessary that it be .. ,: : time . .
so I reserve my ruling on X.:-.. - otion you
may make in that regard until ,i -;.e r, v.at the evi-
dence establishes.
Again, near the end of the heari.n; ',r: fter Green
had testified, I interrogated Green as D' -Ps
Q. You testified here abo ...4:-a-lf, Robert
Green; you say you didn't si n -,n , u did sign
and so on and so forth in the, ,'rtrac-t vith regard
to the demolition project is mae , it t', ',Ou person-
ally. What relationship do you i, -xith the Green
Construction Company of Indiana, !rc.'
A. I am president of it.
Q. What relationship does it have with the demo-
lition project?
A. Technically, none.
Q. What connection does it have with the
Barkley Park project?
A. None.
JUDGE O'MEARA: Any questions prompted by
my questions, gentlemen?
(Negative response.)
It is clear from the foregoing that the question of the
identity of the Respondent was raised at the hearing. It is
further clear that the named Respondent, Green Con-
struction Company of Indiana, Inc., was not the entity
which entered into the contracts and engaged in the ne-
gotiations which gave rise to the charge and complaint
in this case. This fact was brought to the attention of the
parties in as affirmative a manner as fairness permits.
The General Counsel's motion to amend the complaint
and to reopen the record, coming on the eve of the ren-
dition of this decision, is so tardy that basic fairness re-
quires that it be denied. The problem confronting the
General Counsel was clearly brought to his attention at
the hearing when all the parties and witnesses were
present. To relitigate the matter on such a significant
issue would not advance the principles of fairness and
justice. Litigation must come to an end and in this case
advance toward final conclusion. Accordingly, the
motion to amend and reopen the record is denied.3
Accordingly, I find that the General Counsel has not
established, by a preponderance of the credible evidence,
that the Respondent has violated Section 8(a)(1) and (5)
of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Green Construction Company of
Indiana, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) as
alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
It is ordered that the complaint be dismissed in its en-
tirety.
s Although the General Counsel is correct that the question of the
identity of the entity named as the Respondent was not raised by the par-
ties it is clear from the evidence that no remedy against the named Re-
spondent, Green Construction Company of Indiana, Inc., can be support-
ed by this record.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
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1507