North Electric Co.

National Labor Relations Board - Board Decisions

Dec 5, 1974

215 N.L.R.B. 324 (N.L.R.B. 1974)

324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
North - Electric Company and Harriet N. Repp. Case
8-CA-8269
December 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND
PENELLO
Upon a charge filed on March 27, 1974, by Harriet
N. Repp, hereafter called the Charging Party, and duly
served on North Electric Company, hereafter called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for Re-
gion 8 , issued a complaint on May 10, 1974, alleging
that Respondent has refused and was continuing to
refuse to hire the Charging Party and two named in-
dividuals, even though work was available, because of
their membership in and activities on behalf of Local
No 6578, United Steelworkers of America,
AFL-CIO, and/or their participation in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, thereby violating
Section 8(a)(1) and (3) of the Act. Thereafter, Re-
spondent filed an answer, admitting in part and den-
ying in part the allegations of the complaint and re-
questing that the complaint be dismissed.
On June 6, 1974, Respondent filed with the Board in
Washington, D.C., a Motion for Summary Judgment,
seeking dismissal of the complaint in its entirety.
Thereafter, on June 20, 1974, the Board issued an
Order transferring the proceeding before it and a
Notice To Show Cause why the Respondent's mo-
tion should not be granted. The General Counsel
filed a responsive pleading, following which both
the Respondent and General Counsel submitted
briefs and memoranda in support of their positions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, an 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 bases its motion on alternative grounds,
initially that the instant action is barred by previous
litigation of identical issues between the same parties
under settled principles of res judicata, and secondly
that the Charging Party and the other named individu-
als waived employment with Respondent in a court-
approved settlement agreement.
The General Counsel argues in opposition that the
instant matter is an entirely new case of action based
on distinct unfair labor practices, thus is not barred by
having been previously litigated. The General Counsel
further argues that the settlement agreement did not
preclude Charging Party and the other individuals
from seeking employment with Respondent, and did
not, indeed could not, waive their right to be free from
unfair labor practices by Respondent.
The events leading up to the present dispute, as deve-
loped by the parties' pleadings, include a strike at Re-
spondent's plant # 1 in late 1970, following which, Re-
spondent allegedly refused to reemploy the Charging
Party and others for their activities during the strike.
On January 25, 1971, one of the alleged discriminatees
in the instant matter filed a charge in Case
8-CA-6231, alleging that Respondent had unlawfully
terminated and refused to rehire certain individuals,
including those involved in the present action. This
alleged termination and refusal to reemploy was also
the subject of a grievance filed on December 20, 1970,
which was submitted to arbitration. This resulted in an
award ordering backpay to one individual named
herein, and modified the termination of the remaining
two, including the Charging Party, to a temporary dis-
ciplinary layoff. Respondent then filed suit irr the
United States District Court for the Northern District
of Ohio to vacate this award, which ultimately resulted
in a court-approved settlement agreement on June 4,
1973, whereby the individuals involved in the instant
action, and others, allegedly waived employment with
Respondent, unless its plant # 1 were reopened, and
received a sum of money. Thereafter, on December 29,
1973, the Regional Director advised the parties that, in
view of the settlement agreement, he was dismissing the
charge as further proceedings were not warranted un-
der the Board's policy set forth in Spielberg Manufac-
turing Company, 112 NLRB 1080 (1955). He further
advised that his decision could be appealed to the Gen-
eral Counsel. No appeal was filed.
After the entry of the settlement agreement but
before the Regional Director's dismissal of the charge,
the Charging Party applied for employment at Respon-
dent's plant #2 on September 29, 1973. The other
alleged discriminatees applied on January 19, 1974, and
March 26, 1974. All were refused employment.
Whereupon the Charging Party filed the charge leading
to the issuance of the instant complaint which alleges,
in substance, a discriminatory refusal to hire.
Having reviewed the entire record and the briefs and
memoranda of the parties, we are of the opinion that
the Motion for Summary Judgment should be granted.
Apart from the refusal to rehire, the General Counsel
does not allege any facts of circumstances in this matter
that were not litigated in the previous proceeding, nor
any union and/or concerted activity by the dis-
criminatees occurring subsequent to the settlement on
215 NLRB No. 72
NORTH ELECTRIC COMPANY
which Respondent based its refusal to employ the
Charging Party or the other individuals, but rather
appears to be basing this proceeding on issues and
events raised and resolved by the settlement in the prior
proceeding. With regard to the settlement agreement,
we are of the opinion that the individuals named
therein waived reemployment with the Respondent,
unless plant # 1 reopened, which the parties agree has
not occurred.' While we agree with the General
Counsel that a party cannot contractually gain the
right to engage in future unfair labor practices free of
Board processes, absent an allegation that the unfair
labor practices are based on the discriminatees' union
or concerted activity subsequent to the settlement
agreement, we do not believe that this principle urged
by the General Counsel is applicable herein.
Accordingly, as the General Counsel is attempting to
relitigate issues settled in the previous proceeding, the
Respondent's Motion for Summary Judgment shall be
granted and the complaint dismissed in its entirety.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio corporation with its prin-
cipal place of business located in Galion, Ohio, is en-
In pertinent part, the settlement agreement provides.
1 It is understood and agreed that by the execution of this Settlement
Agreement, the individual grievants involved in this proceeding do not
waive any re-employment rights to which they would be entitled under
the Collective Bargaining Agreement if plaintiffs Galion Plant # 1
should be reopened
2 Any and all other claims against plaintiff are waived by the defend-
ants on their behalf and on behalf of the individuals above named
except as specified below in paragraph 3 hereof
325
gaged in the manufacture of telecommunications
equipment and allied products. Annually, in the course
and conduct of its business, the Respondent, from its
Galion, Ohio, facilities, ships goods valued in excess of
$50,000 directly to points located outside the State of
Ohio.
We find, on the basis of the foregoing, that Respond-
ent is, and at all times material hereto has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effectu-
ate the policies of the Act to assert jurisdiction herein.
11 THE LABOR ORGANIZATION INVOLVED
Local No. 6578, United Steelworkers of America,
AFL-CIO, is now and has been at all times material
hereto a labor organization within the meaning of Sec-
tion 2(5) of the Act.
CONCLUSION OF LAW
The conduct of the Respondent as alleged in the
complaint does not constitute a violation of Section
8(a)(1) and (3) of the Act, as amended.
ORDER
It is hereby ordered that the Respondent's Motion
for Summary Judgment be, and it hereby is, granted.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed in its entirety.