Maremont Corp.

National Labor Relations Board - Board Decisions

May 1, 1980

249 N.L.R.B. 216 (N.L.R.B. 1980)

216 DECISIONS ()F NATI()NAL LABOR RELt.ATIONS BOARD
Maremont Corp. World Parts Division and Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica (UAW). Case 26-CA-8161
May 1, 1980
ORDER DENYING MOTION
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELI.O
On December 28, 1979, the Regional Director
for Region 26 of the National Labor Relations
Board issued a complaint and notice of hearing in
the above-entitled proceeding, alleging that Re-
spondent has engaged in and is engaging in certain
unfair labor practices affecting commerce within
the meaning of Section 8(a)(1), (3), and (4) and
Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Subsequently, Respondent
filed an answer, admitting in part and denying in
part the allegations of the complaint, and submit-
ting that the complaint should be dismissed in its
entirety.
On February 7, 1980, Respondent filed a Motion
for Summary Judgment, with exhibits attached.
Thereafter, on February 13, 1980, the Board issued
an order transferring the proceeding to it and a
Notice To Show Cause why Respondent's motion
should not be granted. Thereafter, the General
Counsel filed a response to the Notice To Show
Cause and Respondent filed a brief in reply.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this matter, the Board
makes the following:
Ruling on the Motion for Summary Judgment
Respondent asserts in its motion that the General
Counsel erred by failing to litigate the allegations
of the instant charge and complaint with the allega-
tions in Cases 26-CA-7826 and 26-RC-5950, in-
volving the same parties, and that its failure to liti-
gate such matters in the earlier proceeding pre-
cludes it from litigating these allegations in the
present proceeding.
Pursuant to an order consolidating cases and
notice of hearing issued July 10, 1979,' Cases 26-
CA-7826 and 26-RC-5950 were consolidated and
scheduled for hearing on November 19. Based on
the complaint issued in that proceeding, the subject
matter for the litigation was limited to allegations
that Respondent, through various supervisors, vio-
lated Section 8(a)(1) of the Act as a result of var-
I Unless otherwise indicated, all dates are in 1979
249 NLRB No. 43
ious threats and promises made and interrogations
conducted between March 21 and May 12.
On or about November 13, 6 days before the
hearing, the General Counsel was informed of re-
ports that one of Respondent's supervisors had told
employees on November 9 that they would receive
warning notices or possibly lose holiday pay
should they be absent from work in order to
comply with Board subpenas to be present at the
hearing. No action was taken by the General
Counsel with respect to this report until after the
hearing had commenced on November 19. At the
start of the hearing, with 30 minutes' advance
notice to Respondent, the General Counsel sought
to amend the complaint to allege as violative of
Section 8(a)(l) the reported statements made by the
supervisor on November 9. Respondent objected to
the amendment, stating that it had not received
adequate notice and that it had not had an adequate
opportunity to prepare a position. Although the
General Counsel stated that he would be willing to
allow Respondent time to commence whatever in-
vestigation the Administrative Law Judge found
necessary, he failed to indicate his preference when
the Administrative Law Judge proposed either that
the amendment be granted and the hearing de-
layed, or that the amendment be denied and the
hearing conducted without further delay. The Ad-
ministrative Law Judge denied the motion to
amend the complaint.
After the hearing in that proceeding concluded,
the charge in the instant proceeding was filed on
November 21. On December 28, the General
Counsel issued the complaint herein, alleging that
one of Respondent's supervisors had violated Sec-
tion 8(a)(l) of the Act by making such threats on
November 7, 8, and 15, and that the supervisor had
additionally threatened its employees by telling
them on November 15 that Respondent would not
reinstate a discharged employee even if so ordered
by the Board. Further, the complaint alleges that
Respondent violated Section 8(a)(1), (3), and (4) by
causing one of its employees who had been subpen-
aed to testify at the previous Board hearing to take
accrued vacation leave in order to attend such
hearing.
In its answer to the complaint and in support of
its Motion for Summary Judgment, Respondent
contends that the General Counsel is precluded
from litigating the alleged violations herein which
were known to him at the time of the hearing in
the earlier proceeding, and which should have been
litigated at that time. In support of its argument
that roughly concurrent unfair labor practices
known to the General Counsel must be litigated in
a single proceeding, so as to prevent unnecessary
MAREMONT CORP WORLD PARTS DIVISION 217
harassment of respondents, the Respondent cites,
inter alia, Peyton Packing Company, Inc., 129 NLRB
1358 (1961); Truck Drivers, Oil Drivers, Filling Sta-
tion and Platform Workers Union, Local No. 705,
etc. (Gasoline Retailers Association of Metropolitan
Chicago), 210 NLRB 210 (1974), and Laminite Plas-
tics Mfg. Corp., 238 NLRB 1234 (1978).
In response to the Notice To Show Cause, the
General Counsel argues he had attempted to liti-
gate the allegations herein in the prior proceeding,
but that the Administrative Law Judge had denied
his motion with respect thereto for unexplained
reasons. The General Counsel further asserts that
the cases cited by Respondent are distinguishable
from the present case.
We agree with the General Counsel that he is
not precluded from litigating the allegations in the
present complaint. Although the record indicates
that the General Counsel was aware of at least
some of the allegations in the present complaint at
the time of the hearing in the previous proceeding,
we find no merit in Respondent's argument that the
General Counsel was therefore compelled to liti-
gate the allegations in that proceeding, or not at
all. The General Counsel correctly states that the
cases cited by Respondent are distinguishable. In
Peyton Packing, the Board held that the General
Counsel may not twice litigate the alleged with-
holding of a benefit, first as a violation of Section
8(a)(1) and subsequently as a violation of Section
8(a)(5). In this proceeding, the General Counsel has
not sought to relitigate factual matters previously
litigated under a different provision of the Act. In
Gasoline Retailers Association, the Board placed cer-
tain restrictions on separate litigation of roughly
concurrent alleged violations committed by a single
respondent. In the present case, however, the al-
leged unfair labor practices now sought to be liti-
gated took place 6 months after the latest incident
litigated in the prior proceeding, and hence can not
be considered roughly concurrent violations. Final-
ly, in Laminite Plastics Mfg. Corp., the Board found
that the existence of a settlement agreement pre-
cluded the litigation of presettlement misconduct
which was known by the General Counsel at the
time of the execution of the settlement agreement.
No such issue is presented herein, as the record
does not indicate that a settlement agreement was
reached in Cases 26-CA-7826 and 26-RC-5950.
More generally, we find that the prosecution of
the instant case does not subject Respondent to un-
necessary harassment, as Respondent infers. The
General Counsel attempted to litigate at least some
of the allegations in the present complaint in the
earlier proceeding, but the motion to amend the
complaint to this effect was objected to by Re-
spondent and denied by the Administrative Law
Judge. Having had sufficient notice to prepare its
case in the present proceeding, Respondent may
not now successfully argue that it has been preju-
diced, or that it has been unduly burdened. A more
central concern, however, is that Respondent's ar-
gument, if accepted, would severely restrict the
General Counsel's legitimate exercise of discretion
in the expeditious litigation of outstanding unfair
labor practice complaints. Thus, according to Re-
spondent's reasoning, should the General Counsel
discover additional violations occurring proximate
to the time of the hearing on the earlier alleged
violations, he must either litigate these matters at
that hearing or be prevented from doing so pursu-
ant to a separately filed charge. Such a result
would enable a respondent freely to violate the Act
prior to such hearing, should counsel for the Gen-
eral Counsel discover such violations but be un-
willing to submit to the delays attendant to the liti-
gation of an amended complaint. Therefore, Re-
spondent's arguments are rejected.2
The Board, having duly considered the matter, is
of the opinion that there are substantial and materi-
al issues of fact and law which may best be re-
solved at a hearing before an administrative law
judge. Accordingly,
IT IS HEREBY ORDERED that Respondent's
Motion for Summary Judgment be, and it hereby
is, denied.
IT IS FURTHER ORDERED that the proceeding be,
and it hereby is, remanded to the Regional Direc-
tor for Region 26 for the purpose of arranging such
hearing and that such Regional Director be, and he
hereby is, authorized to issue notice thereof.
- Mcmber I'enllo fillds it ulNecesary tI speculae ais to whether ilt'
argumenrlh raised by Rc'.pondcnt might hase merit i other proceedings
Ill].. nlflg situlIiiOII that arc rlot before us ill this case In Ihe Cirkcunm
sitlccs of this case, Member 'enello joins his colleagues mi denying Rc
,pondent's Mtion fr Summalry Judgment