Highland Yarn Mills

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 644 (N.L.R.B. 1993)

644
310 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s motion refers to certain paragraphs in the com-
plaint in Case 11–CA–15111. This complaint was later consolidated
with Case 11–CA–15224. It is the consolidated complaint which is
currently before the Board. However, the paragraph numbers rel-
evant to this motion are the same in the complaint in Case 11–CA–
15111 as in the consolidated complaint. The Respondent seeks sum-
mary judgment regarding the allegations in paragraphs: 9 (establish-
ment of a peer review committee in February 1992 in violation of
Sec. 8(a)(1) and (3)); 11 (issuance of a written warning to Charles
McDonald on April 29, 1992, in violation of Sec. 8(a)(1), (3), and
(4)); 13 (discriminatory layoffs of two employees in February and
March 1992 in violation of Sec. 8(a)(1) and (3)); 14 (discriminatory
discharge of two employees in March and early June 1992 in viola-
tion of Sec. 8(a)(1) and (3)); 15 and 16 (conclusory paragraphs re-
garding factual allegations set forth in pars. 11 and 12); and, 22, 23,
and 24 (further conclusory paragraphs). The Respondent’s motion
also covers the 8(a)(5) allegations in paragraphs: 21(a) (February 10,
1992 establishment of peer review committee); (b) (February 10,
1992 refusal to accept grievances); (c) (March 1992 refusal to allow
Union to accompany OSHA inspectors on tour of plant); (f) (March
and May 1992 refusal to permit Union access to discuss grievances);
(g) (March and May 1992 causing Union to incur additional ex-
penses to process grievances); (i) (unilaterally combining two jobs
into one in February 1992); (k) (layoff in March 1992); (l) (removal
of union bulletin boards and mail boxes in February 1992).
2 Allegations in Cases 11–CA–14814 and 11–CA–14868 included
numerous incidents of independent 8(a)(1) conduct; no 8(a)(2) con-
duct; various 8(a)(3) violations occurring from September to Decem-
ber 1991 including warnings, a denial of overtime, and a discharge;
no 8(a)(4) conduct; and a withdrawal of recognition occurring in De-
cember 1991.
Highland Yarn Mills, Inc. and Amalgamated Cloth-
ing and Textile Workers Union, AFL–CIO,
CLC. Cases 11–CA–15111 and 11–CA–15224
March 12, 1993
NOTICE TO SHOW CAUSE
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On September 29, 1992, the Regional Director for
Region 11 of the National Labor Relations Board
issued a complaint and notice of hearing in Case 11–
CA–15111 alleging that the Respondent has engaged
in and is engaging in certain unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1), (2), (3), (4), and (5) and Section 2(6) and (7)
of the National Labor Relations Act. On December 30,
1992, Case 11–CA–15111 was consolidated with Case
11–CA–15224 and the cases were set for hearing on
February 1, 1993.
On January 4, 1993, the Respondent filed with the
Board in Washington, D.C., a Motion for Partial Sum-
mary Judgment and Memorandum in Support, with ex-
hibits attached. The Respondent asserts that certain
matters alleged as violations in Case 11–CA–15111,1
were known or should have been known by the Gen-
eral Counsel when he issued a prior consolidated com-
plaint in Cases 11–CA–14814 and 11–CA–14868 on
March 24, 1992, or at the time of trial of those cases
in June and July 1992.2 According to the Respondent,
these allegations are precluded by Jefferson Chemical
Co., 200 NLRB 992 (1972), which limits piecemeal
litigation as a matter of administrative economy. See
also Peyton Packing Co., 129 NLRB 1358, 1360
(1961). The principle underlying these cases is that the
General Counsel may not litigate an unfair labor prac-
tice allegation predicated on events which the General
Counsel knew or should have known about when
issuing an earlier complaint or at the time of the trial
in that earlier complaint, if that allegation is of the
same general nature as, or is related to, an allegation
in the earlier complaint.
On January 12, 1993, the General Counsel filed an
opposition to Respondent’s motion and on January 19,
1993, the Charging Party filed a response. The General
Counsel contends that the allegations in Case 11–CA–
15111 are not precluded by Jefferson Chemical be-
cause they are not sufficiently related to the allegations
in Cases 11–CA–14814 and 11–CA–14868 and were
not contemporaneous with the allegations previously
litigated. The General Counsel also argues that the Re-
spondent has not shown that the General Counsel was
aware of the facts supporting the allegations in Case
11–CA–15111 at the time of the trial of the complaint
in Cases 11–CA–14814 and 11–CA–14868 or that the
General Counsel reasonably could have discovered
those facts.
On January 27, 1993, the Board issued an order
transferring proceeding to the Board.
The pertinent facts are as follows. Pursuant to
charges in Cases 11–CA–14814 and 11–CA–14868
filed in January and February 1992, the General Coun-
sel issued a consolidated complaint in March 1992 al-
leging various 8(a)(1), (3), and (5) violations. These al-
leged violations occurred in October through Decem-
ber 1991. The consolidated complaint went to hearing
before an administrative law judge in June and July
1992, but no decision has issued. Pursuant to charges
filed in Cases 11–CA–15111 and 11–CA–15224 in
August and November 1992, respectively, the General
Counsel issued a consolidated complaint on December
30, 1992, alleging various 8(a)(1), (2), (3), (4), and (5)
violations. The Respondent’s motion is directed to
those alleged violations in Case 11–CA–15111 which
occurred in February through early June 1992, prior to
the hearing in Cases 11–CA–14814 and 11–CA–14868,
which closed July 24, 1992.
Under Jefferson Chemical and Peyton Packing prin-
ciples, the General Counsel may litigate complaint al-
legations in a subsequent proceeding if he was un-
aware of the events that form the basis for the allega-
tions at the time of the earlier hearing and the events
were not commonly known or readily discoverable
after investigation, or the events were independent acts.
See, e.g., Great Western Produce, 299 NLRB 1004 fn.
1 (1990). However, once a respondent has made a
645HIGHLAND YARN MILLS
3 Nickles Bakery of Indiana, 296 NLRB 927 (1989).
4 We recognize that an amendment of the complaint at hearing
may require that the Respondent be given a continuance so that a
defense can be prepared. We also recognize that the judge, in his/her
discretion, may disallow the amendment. If this occurs, the General
Counsel would be free to litigate the allegations in a later pro-
ceeding.
prima facie showing under Jefferson Chemical, we be-
lieve that the burden shifts to the General Counsel to
rebut that showing. More particularly, if a respondent
shows that the allegations of a ‘‘new’’ complaint per-
tain to events that occurred prior to the hearing in an
earlier case and that these new allegations are closely
related to the allegations of the earlier case, the burden
shifts to the General Counsel to show that he did not
know, and could not reasonably have discovered, the
earlier events at the time of the hearing in the earlier
case or that the allegations of the new complaint are
not closely related to the allegations of the earlier case.
We consider this an equitable allocation of the burden
of proof, for the General Counsel is in the best posi-
tion to know what he knew, or should have known, at
the time of the hearing in the earlier case. Further, it
is not dispositive that at the time of the earlier hearing
there was no outstanding charge concerning those ear-
lier events that are the subject of the ‘‘new’’ com-
plaint. There was obviously a charge concerning the
events involved in that earlier hearing. Under that
charge, the General Counsel could investigate, and
issue a complaint on, the allegations of that charge and
allegations closely related thereto.3 Thus, assuming the
requisite close relationship, the General Counsel could
investigate, and issue complaint on, all events occur-
ring prior to the time of the hearing in the earlier case.
Under Jefferson Chemical, we believe that the General
Counsel must follow that course.4
We find that the Respondent has met its prima facie
burden under Jefferson Chemical. Accordingly, the
burden has shifted to the General Counsel to show
why the motion should not be granted with respect to
those unfair labor practices alleged in Case 11–CA–
15111 that: (1) occurred before the July 24, 1992 close
of the hearing in Cases 11–CA–14814 and 11–CA–
14868; and (2) appear to be closely related to certain
of the unfair labor practices alleged in Cases 11–CA–
14814 and 11–CA–14868. For example, at the hearing
in Cases 11–CA–14814 and 11–CA–14868, the parties
litigated a September 19, 1991 warning to Charles
McDonald that allegedly violated Section 8(a)(3). In
Case 11–CA–15111, the General Counsel alleges that
McDonald received a written warning on April 29,
1992, in violation of Section 8(a)(3) and (4), and was
unlawfully discharged on June 2, 1992. In Case 11–
CA–15111, the General Counsel also alleges layoffs,
discharges, warnings, and denials of overtime in viola-
tion of Section 8(a)(3) or Section 8(a)(3) and (4).
These allegations cover the period February 26 to June
2, 1992. All occurred prior to the hearing in Cases 11–
CA–14814 and 11–CA–14868 in which other warn-
ings, a denial of overtime, and a discharge were liti-
gated as alleged violations of Section 8(a)(3). In Cases
11–CA–14814 and 11–CA–14868, the General Counsel
litigated a blanket allegation of 8(a)(5) withdrawal of
recognition in December 1991. In Case 11–CA–15111,
the General Counsel alleges various discrete violations
of Section 8(a)(5) from February to March 1992. All
the allegations in Case 11–CA–15111 that are the sub-
ject of the Respondent’s motion should be discussed in
response to this notice.
The Board having duly considered the matter,
NOTICE IS GIVEN that cause be shown, in writing,
filed with the Board in Washington, D.C., on or before
March 26, 1993 (with affidavit of service on the par-
ties to this proceeding), why the Respondent’s motion
should not be granted. Among other things, responses
to this notice should address the following: (1) whether
the General Counsel was aware or should reasonably
have been aware, prior to the close of the hearing in
Cases 11–CA–14814 and 11–CA–14868, of some or
all the facts forming the basis for those allegations in
Case 11–CA–15111 that are subject of the Respond-
ent’s motion; (2) the relationship, if any, between the
subject allegations in Case 11–CA–15111 and the alle-
gations in Cases 11–CA–14814 and 11–CA–14868;
and (3) why, if the General Counsel could have incor-
porated some or all the subject allegations in Case 11–
CA–15111 in the complaint in Cases 11–CA–14814
and 11–CA–14868, he did not do so.