McDonnell Douglass

National Labor Relations Board - Board Decisions

Mar 8, 1973

202 N.L.R.B. 305 (N.L.R.B. 1973)

DOUGLAS AIRCRAFT COMPANY 305
Douglas Aircraft Company , a component of McDon-
nell Douglas and Robert H. Mourning. Case
31-CA-1435
March 8, 1973
ORDER GRANTING APPEAL AND
GRANTING MOTION TO DISMISS
COMPLAINT AND NOTICE OF
HEARING
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On November 16, 1972, the Regional Director for
Region 31 of the National Labor Relations Board
issued his complaint and notice of hearing in the
above-entitled proceeding pursuant to a charge filed
by the Charging Party on May 9, 1969. Thereafter,
on November 22, 1972, Respondent filed a motion to
dismiss said complaint with the Chief Associate
Administrative Law Judge, which was denied on
November 30,1972. On December 14, 1972, Respon-
dent filed with the Board a Request for Special
Permission to Appeal from Ruling of the Associate
Chief Administrative Law Judge, with memorandum
in support thereof, contending, inter alia, that the
General Counsel, on June 5, 1970, after dismissal of
the charge on August 7, 1969, by the Regional
Director, denied a second request for reconsideration
from the Regional Director's dismissal of the charge,
and closed the case. He therefore requests that this
complaint be dismissed and the notice of hearing
canceled. On January 10, 1973, counsel for the
General Counsel (hereinafter simply the General
Counsel), filed opposition to Respondent's request.
The Board, having duly considered the matter, has
decided to grant the Request for Special Permission
to Appeal in view of the policy nature of the issue
involved.
In support of its motion to dismiss, Respondent
recites the chronological history of this case, empha-
sizing that the second request for reconsideration was
denied by the General Counsel's Office of Appeals
on June 5, 1970, upholding the Regional Director's
refusal to issue a complaint, and relying on the
Board's decision in Forrest Industries, Inc., 168
NLRB 732, which dismissed an unfair labor practice
case without passing on the merits. In that decision, a
panel of the Board found that the General Counsel's
rejection of the first motion for reconsideration was
I Citing, inter aba, such cases as Iaidlaw Corporation, 171 NLRB 1366,
Fibreboard Paper Products Corporation , 138 NLRB 550, The Great Atlantic &
Pacific Tea Company, 101 NLRB 1118, Parkview Gardens, 166 NLRB 697;
Collyer Insulated Wire, 192 NLRB No. 150, Bryant Chucking Grinder Co,
160 NLRB 1526. Except for the Bryant Chucking case, all of the cited cases
involved a substantive change in the law applied to a case currently pending
before the Board , and did not involve an administrative revival of a
dispositive of the case and concluded that it would
not effectuate the purposes of the Act to proceed
further. In essence , Respondent contends that the
present complaint is barred by Section 10(b) of the
Act because there is no valid charge pending in light
of the prior denials of the appeals on the refusal of
the Regional Director to issue a complaint.
The General Counsel urges rejection of Respon-
dent's motion to dismiss complaint, contending that
the action of the General Counsel's Office of Appeals
on October 4, 1972, in vacating its second refusal to
reconsider and remanding the case to the Regional
Director for issuance of a complaint, was proper in
light of the Board's amendment of Section 102.19(c)
of the Board's Rules and Regulations on March 8,
1972. He further urges the retroactive application to
this case is warranted since the Board has made
retroactive application of substantive and procedural
changes in other areas.) The General Counsel further
contends that the issuance of the complaint at this
late date is not barred by Section 10(b) of the Act
and asserts that in any event the procedural question
of whether the complaint is now properly issued can
be determined in the context of the substantive issues
to be developed at a hearing.
This case, however, does not involve the usual
interpretations of Section 10(b) since the initial
charge was timely filed, nor does it involve authority
of the General Counsel since concededly, under
Section 3(d) of the Act, he is the final authority on
the issuance of the complaint. However, once the
complaint has issued, the disposition of such com-
plaint, as well as the interpretation of both the law
and the pertinent Rules and Regulations, rests with
the Board.
It is true as the General Counsel points out that the
Board's amendment of the Rules explicitly author-
izes entertaining motions for reconsideration if the
moving party establishes that the new evidence
which has been discovered could not have been
discovered by diligent inquiry prior to the first
reconsideration, and that no time limitation is
imposed.2
The issue thus posed to the Board is whether the
policy of administrative finality enunciated in Forrest
Industries, supra, has been substantially modified by
our amendment of Section 102.19(c), and whether, if
such modification occurred, it should be applied
retroactively.
To the extent that Forrest Industries appears to
dismissed charge and issuance of a complaint due to a change in rules.
2 The language added to Section 102.19(c ) on March 8, 1972, stated.
Motions for reconsideration of a decision previously reconsidered will
not be entertained, except in unusual situations where the moving party
can establish that new evidence has been discovered which could not
have been discovered by diligent inquiry prior to the first reconsidera-
tion
202 NLRB No. 65
306 DECISIONS OF NATIONAL
preclude consideration of a second motion for
reconsideration , the amendment of the rules permit-
ting such consideration on the limited basis noted
constitutes a modification of the holding in that case.
As to retroactivity , the Board , in amending Section
102.19(c) on March 8 , 1972, intended such amend-
ment to be applied prospectively , to cases then either
actively pending on appeal or to future cases. It did
not contemplate nor intend that it be applied
retroactively to cases dismissed under rules in effect
at a prior time , and certainly not to a case whose
appeal had been denied for a second time on June 5,
1970. Applying such rule change retroactively would
amount to a repudiation of any concept of adminis-
trative finality , restrict the expeditious handling of
current cases, and substantially undermine the
LABOR RELATIONS BOARD
objective of Section 10(b), which was to preclude the
litigation of stale charges.
Therefore , and without passing on the merits of the
case , the Board concludes that Respondent 's motion
to dismiss complaint should be granted.
ORDER
It is hereby ordered that the Respondent's Request
for Special Permission to Appeal from Ruling of the
Associate Chief Administrative Law Judge be, and it
hereby is , granted.
IT IS FURTHER ORDERED that Respondent 's motion
to dismiss complaint and notice of hearing be, and it
hereby is , granted.