Kaumagraph Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 624 (N.L.R.B. 1993)

624
313 NLRB No. 82
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Except to the extent that the Charging Party was notified that the
General Counsel would not seek a restoration remedy in the Decem-
ber 2, 1992 letter, the evidence and information uncovered during
the administrative investigation was not available to the Charging
Party.
2 The Charging Party did not appeal from the Regional Director’s
decision not to seek restoration as a remedy.
3 Both the General Counsel and the Respondent rely on Lear
Siegler, Inc., 295 NLRB 857, 861 (1989), and Billion Oldsmobile-
Toyota, 260 NLRB 745 fn. 2 (1982).
4 In its request for special permission to appeal, the Respondent
contends that Judge Wolfe left open the possibility that the Charging
Party could raise the issue of restoration in supplementary proceed-
ings or in posttrial briefs. The Respondent argues that the Board
should review Judge Wolfe’s ruling because ‘‘it involves unique and
novel issues of law’’ and ‘‘leaves Respondent in an anomalous posi-
tion.’’ Therefore, the Respondent urges the Board to grant its cross-
appeal and preclude consideration of a restoration remedy.
Kaumagraph Corporation and United Steelworkers
of America, AFL–CIO–CLC. Case 4–CA–20367
January 18, 1994
ORDER
The National Labor Relations Board has decided to
include in the bound volumes the attached Order,
which issued on November 22, 1993.
By direction of the Board: Joseph E. Moore, Deputy
Executive Secretary.
ORDER
November 22, 1993
On October 30, 1992, the Regional Director for Re-
gion 4 issued a complaint and notice of hearing in the
above proceeding, alleging that the Respondent has en-
gaged in violations of Section 8(a)(1), (3), and (5) of
the Act by, inter alia, transferring unit operations from
its Wilmington, Delaware facility to Flint, Michigan.
During the investigation of the alleged violations, the
Charging Party requested that the General Counsel
seek a restoration and reinstatement remedy in this
case. By letter dated December 1, 1992, the Regional
Director advised the Charging Party that ‘‘the Wil-
mington plant had been unprofitable for several
years’’1 and that it would not seek such a remedy. The
Regional Director also informed the Charging Party
that it could seek review of the Region’s determination
by filing an appeal with the General Counsel in Wash-
ington.2
By letter dated October 1, 1993, the Charging Party
advised Respondent’s counsel that it intended to ‘‘ad-
vocate for a restoration remedy . . . at the ALJ hear-
ing commencing October 20, 1993.’’ On October 20,
1993, a preliminary hearing opened before Administra-
tive Law Judge Claude R. Wolfe to consider whether
Charging Party would be permitted to seek a restora-
tion remedy. At the commencement of the hearing, the
General Counsel announced that it would be seeking a
full backpay remedy but would not seek restoration
and reinstatement. After hearing from all concerned,
Judge Wolfe ruled that he would not permit the Charg-
ing Party to introduce evidence in support of the res-
toration remedy at the full hearing, scheduled for De-
cember 15, 1993, but would permit the Charging Party
to argue this matter in its brief to the judge.
On October 26, 1993, the Charging Party filed a Re-
quest for Special Permission to Appeal from Ruling of
the Administrative Law Judge. The Charging Party
contends that the judge based his ruling on the ground
that the General Counsel controls the theory of the
case, that since the General Counsel has made an af-
firmative decision not to seek restoration, the General
Counsel must have decided that there is no evidence
to support a restoration remedy and that restoration is
not warranted. The Charging Party concedes that the
General Counsel controls the theory of the complaint
but argues that such control is limited to the violations
alleged and that it is the Board, through the adminis-
trative law judge, which controls the remedies which
will be ordered.
The Charging Party further contends that it is enti-
tled to exercise its right to introduce independent evi-
dence in order to support a restoration remedy which
is in the power of the judge and the Board to order.
Accordingly, the Charging Party urges the Board to
grant its appeal, reverse the judge’s ruling, and permit
the Charging Party to introduce evidence in support of
its contention that restoration is an appropriate remedy
for the unfair labor practices alleged.
On November 8 and 9, 1993, respectively, the Gen-
eral Counsel and the Respondent each filed statements
in opposition to Charging Party’s appeal3 and the Re-
spondent filed a cross-appeal. The General Counsel
and the Respondent concede that the normal remedy in
discriminatory relocation cases is restoration of the op-
erations and reinstatement of the discriminatorily ter-
minated employees, unless the Respondent established
that restoration would be unduly burdensome, that the
question of a restoration remedy has already been de-
cided, and that although provided an opportunity to do
so, the Charging Party failed to appeal the Regional
Director’s determination not to seek restoration.
They further contend that the Charging Party’s at-
tempt to relitigate the restoration issue is analogous to
a charging party’s attempt to amend the complaint or
pursue a violation contrary to the General Counsel’s
theory of a violation, and that to permit the Charging
Party to introduce evidence in support of restoration
‘‘would create the undesirable situation of allowing the
Board to consider a portion of the charge which the
General Counsel has already determined lacked merit
and thought it proper to dismiss.’’ The General Coun-
sel moves the Board to affirm the judge’s ruling.4
625KAUMAGRAPH CORP.
5 See Lear Siegler, supra, cited by both the General Counsel and
the Respondent for a description of the Board’s ‘‘usual practice’’ in
cases alleging a ‘‘discriminatory relocation of operations.’’
6 The General Counsel and the Respondent contend that by failing
to pursue its opportunity to appeal from the Regional Director’s rul-
ing, the Charging Party waived its right to seek a restoration remedy.
Because the Regional Director’s administrative disposition of the re-
medial issue is not binding on the Board, the Charging Party’s fail-
ure to appeal is irrelevant.
Having duly considered the matter, the Board has
decided to grant the Charging Party’s and the Re-
spondent’s requests for special permission to appeal
and, on the merits, the administrative law judge’s rul-
ing is vacated, and the judge is directed to permit the
parties to introduce evidence bearing on whether res-
toration and reinstatement is an appropriate remedy
under Board precedent.5
Section 3(d) of the Act vests the General Counsel
with exclusive jurisdiction with respect to the inves-
tigation and prosecution of unfair labor practice com-
plaints on behalf of the Board, including the decision
whether to issue a complaint. Once a complaint has
issued, however, responsibility for fashioning an ap-
propriate remedy for the alleged unfair labor practices
rests with the Board. See Section 10(c) of the Act. The
General Counsel’s authority under Section 3(d) does
not extend so far as to preclude litigation over the
question of whether the Board’s usual restoration and
reinstatement remedy is appropriate here with the re-
sult being that this issue is resolved via an administra-
tive investigation. Indeed, the extent of the Board’s
control over the remedy is clearly demonstrated in
Schnadig Corp., 265 NLRB 147 (1982): ‘‘Whether
Counsel for the General Counsel seeks a backpay rem-
edy is immaterial since we have full authority over the
remedial aspects of our decisions.’’ Similarly, in Dean
General Contractors, 285 NLRB 573 fn. 5 (1987), the
Board stated that the General Counsel’s indication at
the hearing that reinstatement ‘‘probably’’ would not
be sought ‘‘does not . . . limit the Board’s authority
under Section 10(c) of the Act to fashion an appro-
priate make-whole remedy.’’6 Accordingly,
IT IS ORDERED that the Charging Party’s and the Re-
spondent’s requests for special permission to appeal
the judge’s ruling are granted, the administrative law
judge’s ruling is vacated, and the above proceeding is
remanded to Administrative Law Judge Claude R.
Wolfe with instructions to permit the parties to intro-
duce evidence regarding the appropriateness of a res-
toration and reinstatement remedy.