Jefferson Chemical Co., Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1972

200 N.L.R.B. 992 (N.L.R.B. 1972)

992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jefferson Chemical Company , Inc and Oil,
& Atomic Workers International Union,
0 Case 23-CA-4248
December 20, 1972
DECISION AND ORDER
Chemical labor practice to go unremedied in contravention of
AFL-CI- the policies and purposes of the Act
Our colleagues' decision, in essence, requires that
the General Counsel be aware of each and every fact
giving rise to a possible unfair labor practice prior to
On May 5, 1972, Administrative Law Judge'
Benjamin K Blackburn issued the attached Order in
this proceeding in which he granted Respondent's
Motion for Summary Judgment of Dismissal There-
after, the General Counsel filed a request for
permission to seek special appeal, and Respondent
filed a brief in response thereto
The Board has considered the attached Order in
light of the request and brief and has decided to
affirm2 the conclusions of the Administrative Law
Judge and to adopt his Order 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Order of the
Administrative Law Judge and hereby orders that
the complaint be, and it hereby is, dismissed in its
entirety
MEMBERS FANNING AND JENKINS, dissenting
Despite the absence of any evidence whatsoever of
a violation of due process or prior litigation of the
issues involved, our colleagues have affirmed the
Administrative Law Judge's dismissal of the com-
plaint herein predicated primarily upon the General
Counsel's disavowal in an earlier unfair labor
practice proceeding4 of his intention to litigate a
nonalleged and unknown surface bargaining viola-
tion of Section 8(a)(5) of the Act Inasmuch as we do
not understand our colleagues to attribute knowledge
of the alleged surface bargaining issue to the General
Counsel at the time of his disavowal, we are at a loss
to comprehend the rationale underlying their action,
which has the effect of allowing a possible unfair
i The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 See also Peyton Packing Company Inc 129 NLRB 1358
3 Our dissenting colleagues argue that the General Counsel should not be
required to be aware of each and every fact giving rise to a possible unfair
labor practice prior to the issuance of a complaint since its investigation is
normally limited to the allegations set forth in the charge While we do not
disagree with this principle we believe that as a corollary, the General
Counsel is dutybound to investigate all matters which are encompassed by
the charge and to proceed appropriately thereafter As noted by the
Administrative Law Judge the charge in Jefferson C'iemical Co Case
23-CA-4088 filed on August 31 1971 was a broad refusal to bargain
collectively charge The General Counsel was thereby put on notice to
investigate all aspects of that 8(a)(5) and ( 1) charge and his failure to litigate
bad faith bargaining in that case for whatever reason cannot now justify
his litigation of surface bargaining in the instant case
Moreover the Charging Party itself is not totally without fault here At
the issuance of a complaint However, in practice,
this is not possible, due primarily to the fact that the
Board's investigation is normally confined to those
allegations of the charge which sets the Board's
investigatory machinery in motion Should addition-
al violations be disclosed during the investigation it
is, of course, the Board's policy to include those in
any subsequent complaint Moreover, anticipating
the handicaps the Board would face in the adminis-
tration and application of the Act and recognizing
the fact that additional violations may surface at any
time prior to the final litigation of a complaint,
Congress expressly provided in Section 10(b) for the
amendment of an outstanding complaint at any time
prior to the issuance of an order based thereon Thus,
in line with such unlimited authority, the Board has
consistently followed a liberal policy with respect to
allowing the amendment of complaints during
litigation thereof Additionally, the Board has al-
lowed and sanctioned the litigation of separate and
distinct complaints predicated upon evidence or
allegations disclosed during the litigation of prior
outstanding complaints involving the same respon-
dent without any inquiry as to why same was not
alleged in the prior complaint Cf Schill Steel
Products, Inc, 144 NLRB 69, 70-71, enforced 340
F 2d 568 (C A 5)
Moreover, as an administrative matter, there
appears to be substantial justification for the General
Counsel to have proceeded initially against Respon-
dent only for its prenegotiation unfair labor prac-
tices Issuance of the complaint limited to those
matters might well have led to a settlement with
corresponding corrective action by Respondent
setting the stage for good-faith negotiations Though
that eventuality failed to materialize, limitation of
the litigation to the prenegotiation events could be
expected to result in an earlier decision with the same
the time the charge in Jefferson Chemical Co Case 23-CA-4088 was filed
if not by the time the complaint in that case issued the Charging Party must
have known of the Respondents bargaining tactics (the first bargaining
session was held in July 1971) and if it was dissatisfied with the General
Counsels narrow complaint it could have made the facts regarding the
alleged surface bargaining known either before or during the hearing in that
case Instead however the Charging Party chose to file a second charge, the
charge herein (which in part spans the same time period as that covered by
the charge in the earlier case) 2 days after the hearing was recessed
We believe that such multiple litigation of issues which should have been
presented in the initial proceeding constitutes a waste of resources and an
abuse of our processes and that we should not permit it to occur
4 Jefferson Chemical Company Inc Case 23-CA-4088 200 NLRB No
135 alleging that the Respondent therein violated Section 8 (a)(5) of the Act
by unilaterally effecting certain changes in conditions of employment prior
to the beginning of the collective bargaining negotiations which form the
subject matter of this case
200 NLRB No 134
JEFFERSON CHEMICAL COMPANY, INC 993
result Surface bargaining cases, such as the instant
one, usually do require exhaustive investigation and
result in lengthy hearings, all of which could
conceivably have been avoided by a successful
prosecution of the complaint in Case 23-CA-4088
In any event, there is nothing to show that the
General Counsel did in fact have information as to
such conduct in his possession at the time of the
hearing in the earlier case To hold, as our colleagues
do, that the General Counsel should have conducted
an exhaustive investigation into every aspect of
Respondent's conduct on the basis of the first charge
and that failure to have done so necessarily estops
him from proceeding on the later filed charges
dealing with issues arising after those litigated in the
first case imposes an intolerable investigatory burden
on him, which, if assumed in every case, will
necessarily result in a less effective enforcement of
the provisions and policies of the Act
Although our colleagues do not disagree with the
principle enunciated above, i e, limitation of the
General Counsel's investigation to the facts alleged,
they nevertheless would still impose the burden upon
the General Counsel to investigate the myriad facts
and circumstances which could possibly underly an
unfair labor practice cognizable under any of the
subsections of Section 8 of the Act Thus, our
colleagues would make the complete separation of
the wheat from the chaff a condition precedent to the
issuance of a complaint Failing such purification,
the General Counsel, under the majority's position,
would not be allowed at any stage of the proceedings
to amend his complaint or, as here, to issue a new
complaint to allege any additional unfair labor
practices which were not cognizable under his
original complaint This of course, as noted supra,
flies directly in the face of Section 10(b) of the Act
which expressly provides to the contrary
Lastly, our colleagues appear to have misconceived
the purposes and policies of the Act, since under
their position, they would leave unfair labor practices
unremedied solely on the grounds that the Charging
Party or the General Counsel had, respectively,
inadvertently failed to bring the facts underlying the
new complaint immediately to the attention of the
General Counsel or because the General Counsel
failed to discover them prior to the issuance of his
original complaint By such action, they would
convert what is now a public act designed to protect
public policy into one designed solely to vindicate
the rights of private individuals Moreover, in
predicating their dismissal on the Union's failure to
raise in timely fashion the acts underlying the new
complaint, the majority completely overlooks the
fact that the prosecution or prevention of unfair
labor practices is a duty invested by the Act solely in
the General Counsel and the Board, and that duty
cannot be limited or curtailed by an inadvertence or
other act of the Charging Party
We would reverse the Administrative Law Judge's
Decision and remand this case to him for hearing
ORDER
Respondent filed with the National Labor Relations
Board a Motion for Summary Judgment of Dismissal
herein on April 7, 1972 The executive secretary of the
Board transferred it to me for ruling on April 19, 1972
I conducted a hearing in Conroe, Texas, on February 15
and 16, 1972, in Jefferson Chemical Company, Inc, Case
23-CA--4088, and closed it by Order on March 23, 1972
That case involved the same parties as this The issue
litigated was whether Respondent had violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by specific unilateral changes in the terms and
conditions of employment of its employees At the outset
of the hearing, the following exchange took place between
counsel for the General Counsel and me
TRIAL EXAMINER Mr Levy, are you trying to
expand this Complaint in any ways
MR LEVY No, sir, most assuredly not, and we
would specifically tell this Court and Mr Sieger
[counsel for Respondent] that we are not asking the
Trial Examiner make any findings as to unfair labor
practices other than those which are alleged in the
Complaint
TRIAL EXAMINER But very specifically, now, the
General Counsel is making no contention of general
bad faith bargaining?
MR LEVY No, sir
The charge herein was filed on February 18, 1972 The
gravamen of the complaint, issued on March 31, 1972, is
that, "at all times [after August 18, 19711 Respondent
negotiated with the Union in bad faith, with no intention
of entering into any final or binding collective-bargaining
agreement "1
A Verified Statement of Facts which accompanied
Respondent's Motion for Summary Judgment of Dismissal
stated, in part
On information and belief, most matters tending to
support the allegations in [the complaint in Case
23-CA-42481 occurred prior to the commencement of
the heanng in case number 23-CA-4088, and all
occurred prior to the conclusion of said hearing
Consequently, on April 20, 1972, I issued an Order
directing the General Counsel and the Charging Party to
show cause why Respondent's Motion for Summary
Judgment of Dismissal should not be granted The General
Counsel's response, dated April 27, 1972, stated, in part
The charge in this proceeding was of course,
1 The complaint also alleges an independent violation of Sec 8(a)(1) of
the Act in October or November 1971 and a violation of Sec 8(a)(5) and (1)
in that Respondent unilaterally eliminated its policy of furnishing uniforms
to employees on or about November 1 1971
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigated upon a surface bargaining concept It was
determined that the charge had merit and complaint
issued alleging said violations The period of time
covered during the course of this surface bargaining by
Respondent begins at the commencement of the Section
10(b) period and runs continuously thereafter The events
complained of in the subject case encompassed periods of
time both before and after the hearing in Conroe before
the Honorable Trial Examiner Not only is it a broader
period of time, but the charge alleging such violations
had not been filed until after the hearing as noted
above The initial charge in Case 23-CA-4088, upon
which complaint issued, narrowly defined the issues as
specific unilateral changes in terms and conditions of
employment and not a surface bargaining concept
[Emphasis supplied ]
This, of course, is predicated upon a surface
bargaining concept Such issue was not before the Trial
Examiner in the prior proceeding, was not raised in the
prior case, and an investigation had not been made as
to this allegation at the time of the trial It was only
upon the filing on the charge on January [sic] 18, 1972,
that an investigation was made predicated upon the
allegation that Respondent had no intention of
bargaining in good faith with the Union
General Counsel is just as desirous as is Respondent
in having a proceeding which totally embraces all
issues This can only be had where all the issues, and
the evidence upon which they are founded, are known
to the General Counsel The initial proceeding was
restricted solely to unlawful unilateral action By
stipulation of the parties, the evidence did not consider
any facts relating to face-to-face bargaining conduct
Only after the charge in this proceeding was filed
alleging the surface bargaining concept, was the
investigation commenced disclosing that the charge
had merit As already observed, this occurred after the
hearing in Case 23-CA-4088
First, counsel for the General Counsel does not aver that
events which occurred after February 15, 1972, the date of
his explicit disavowal of a contention that Respondent had
engaged in general bad-faith bargaining with the Charging
Party, form the basis of the General Counsel's present
contention that it has Second, he has misstated the
allegations in the charge in Case 23-CA-4088 It was filed
on August 31, 1971, alleged violations of Section 8(a)(1),
(3) and (5) of the Act and read, in the block labeled "Basis
of the Charge (Be specific as to facts, names, addresses,
2 The charge in Case 23 -CA-4088 appears among the formal documents
received into evidence in that case There is no copy of the charge in this
case among the documents before me I assume based on the following
excerpt from the Charging Party s response to my Order to Show Cause
that it contains the specific words bad faith or something synonymous
In Case No 23-CA-4088 the emphasis was on certain unilateral
conduct on the part of the Employer The General Counsel found merit
to that contention and issued complaint on that theory During the
course of the hearing in that case it became apparent to the Union and
more particularly its counsel who entered the case at that stage that
plants involved, dates, places, etc )"
Since on or about June 18, 1971, the above named
employer has refused to bargain collectively with the
certified representative of its employees in an appropri-
ate unit, The Oil, Chemical and Atomic Workers
International Union On or about the last part of July
the said employer discriminated in regard to term or
condition of employment as to Grady Yawn because of
his union support and activities and to discourage
membership in the union 2
I conclude, therefore, that Respondent is correct in its
averment that this complaint is predicated on events
which took place prior to February 15,1972, and which
were, or should have been, known to the General
Counsel through his investigation of the broad refusal
to bargain allegation in the charge in Case 23-CA-
4088 when, on that date, he stated, in effect, that
Respondent had not engaged in general bad-faith
bargaining
To permit the General Counsel to raise such an issue in
this manner through the vehicle of this case would, in my
opinion, be a denial of due process to the Respondent The
situation is analogous to one in which a party, after the
close of hearing, moves the Board to reopen in order to
present additional evidence The principle is so well
established that citation of cases would be superfluous If
the moving party knew, or should have known, of the
existence of the evidence at the time of the hearing, his
motion is denied In Case 23-CA-4088, the violation
alleged was that Respondent had refused to bargain with
the Charging Party within the meaning of Section 8(a)(5)
After investigation, the General Counsel elected to proceed
to litigation on the narrow theory of unilateral changes in
terms and conditions of employment If he investigated
thoroughly, he knew at the time of the hearing all that had
transpired between Respondent and the Charging Party
and had rejected a general bad-faith bargaining theory If
he elected, for whatever reason, to limit his investigation so
that he did not, in fact, know all that had happened when
the hearing opened, it would be unfair to Respondent to
permit him now to use his own failure to conduct a
complete investigation as an excuse from permitting him to
litigate an issue he was unwilling to litigate on February 15,
1972
Counsel for the General Counsel's response to my Order
to Show Cause is essentially a legal argument The cases he
relies on are, in the main, inapposite since they involve the
principle of resjudicata This is obviously not a resjudicata
situation In fact, as counsel for the General Counsel's
response, supra, points out, the issue of whether Respon-
dent had engaged in general bad-faith bargaining with the
Charging Party was intentionally excluded as a result of
counsel for the General Counsel's position, and all parties
other violations of Section 8(a)(5) had occurred
One of the conclusions reached by the Union s attorney was that
there had been a general absence of good faith on the part of the
Employer in its negotiations with the Union i e surface bargaining
Since that theory had not been advanced previously and had not been
alleged in the complaint it was deemed advisable to file a new charge
A new charge Case No 23-CA-4248 was filed in which a surface
bargaining theory was urged and such charge was investigated by the
Regional Office of the Board in its usual procedure [Footnote
omitted ]
JEFFERSON CHEMICAL COMPANY, INC 995
stipulated that evidence relating to Respondent 's and the
Charging Party's efforts to negotiate a collective -bargain-
ing agreement would not be received However, I note the
following two footnotes from cases cited by counsel for the
General Counsel for the light they throw on the Board's
attitude in similar procedural situations in the past Neuhoff
Bros, Packers, Inc, 159 NLRB 1710
We do not agree with the Trial Examiner's conclu-
sion that certain alleged 8(a)(1) violations did not
require litigation herein because they occurred at
approximately the same time as and were similar in
nature to violations found by a Trial Examiner in an
earlier case involving this same Respondent See
Neuhoff Bros Packers, Inc, 151 NLRB 916 Suffice it to
say, the alleged violations occurred after the complaint
issued in the earlier case, were not known to the
General Counsel at the time of the earlier hearing, were
independent acts, and were not the type of alleged
violation commonly known or readily discoverable, even
after an exhaustive investigation However, in view of
our subsequent findings , including the issuing of a
cease and desist order against the Respondent , we find
it unnecessary to pass on these alleged violations at this
time [Emphasis supplied ]
Central Power & Light Company, 173 NLRB 287
In its exceptions and supporting brief the Respon-
dent renewed its contentions that the Trial Examiner
erred in granting the General Counsel's motion to
reopen the record in Case 23-CA-2774 (which hearing
had been held and closed) and consolidating that case
with Case 23-CA-2885, and also renewed its conten-
tion that the amendments to the complaint in Case
23-CA-2885, made by the General Counsel at the
reopened and consolidated hearing, were barred by the
provisions of Section 10(b) of the Act We find that the
Trial Examiner did not exceed the discretion permitted
him under Section 102 35(h) of the Rules and Regula-
tions, Series 8, as amended However, our affirmance of
the Trial Examiner's ruling in this respect is not to be
construed as approval of the General Counsel's method of
procedure in these cases [Emphasis supplied ]
Therefore,
It is ordered that Respondent's Motion for Summary
Judgment of Dismissal herein be, and it hereby is, granted