Sdc Investment, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1986

278 N.L.R.B. 694 (N.L.R.B. 1986)

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SDC Investment, Inc. and Butchers ' Union Local
498, United Food and Commercial Workers
International Union, AFL-CIO. Cases 20-CA-
19782 and 20-RC-15319
25 February 1986
ORDER DENYING MOTIONS FOR
SUMMARY JUDGMENT
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
Upon a,charge filed by Butchers' Union Local
498, United Food and Commercial Workers Inter-
national Union, AFL-CIO-CLC (the Union), on
17 July 1985, the General Counsel of the National
Labor Relations Board issued a complaint on 30
August 1985 against SDC Investment, Inc. (SDC),
the Respondent, alleging that it has violated Sec-
tion 8(a)(1) of the National Labor Relations Act by
various acts and conduct.
The complaint alleges in paragraph 6 that about
10 April 1985, SDC, by the use of signs posted at
its facility, threatened its employees with plant clo-
sure and loss of pay, jobs, and benefits if they
voted for the Union and that about 10 and 11 April
1985, SDC President Breed and Assistant Quality
Control Manager Sanchez threatened employees
with plant closure and loss of benefits if the em-
ployees voted for the Union. The complaint alleges
in paragraph 7 that on an unknown date before 12
April 1985, SDC Supervisor Visserman promised
employees raises if the Union lost the election and
that on an unknown date after 12 April 1985, SDC
Supervisor Visserman told employees that SDC
had withheld wage increases because of the union
election.' On 5 September 1985, SDC filed an
answer denying the alleged violations of the Act.
On 23 September 1985 the Regional Director
issued an order consolidating Case 20-CA-19782
with Case 20-RC-15319.
On 11 October 1985 the Union filed a Motion for
Summary Judgment, with exhibits attached, and on
21 October 1985 SDC filed an opposition to the
motion. On 14 November 1985 the Board issued an
order transferring the proceeding to the Board and
a Notice to Show Cause why the motion should
not be granted. On 18 November 1985 the Union
filed a response to SDC's opposition. On 21 No-
vember 1985 the General Counsel filed a Motion
for Partial Summary Judgment, with exhibits at-
tached, and a memorandum in support of the
motion. On 13 December 1985 SDC filed a re-
sponse to the show cause order and an opposition
1 An additional allegation that SDC, by means of a film, threatened
plant closure if the employees voted for a union, was withdrawn in an
amendment made to the complaint on 18 November 1985.
to the General Counsel's Motion for Partial Sum-
mary Judgment. On 13 January 1986 the General
Counsel filed an Amended Motion for Partial Sum-
mary Judgment.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motions for Summary Judgment
The basis for the motions of the Union and the
General Counsel is an unfair labor practice charge
filed by SDC's attorney. The General Counsel also
relies on certain communications between SDC's
attorney and the Regional Office in investigating
this charge. The record shows that on 18 July 1985
SDC's attorney filed a charge in Case 20-CA-
19784 alleging that SDC had violated Section
8(a)(1) of the Act in various respects. Accompany-
ing this unusual charge was a letter from SDC's at-
torney explaining that there was a currently pend-
ing election objections case, Case 20-RC-15319, in-
volving SDC and that the objections in that case
were identical to the unfair labor practice charge
he was filing. The attorney's letter contended that
a hearing officer in an election objections case
lacks authority to rule on matters which, if proven,
would constitute violations of Section 8(axl) of the
Act. The letter further stated that the charge was
being filed in order to allow the Board an opportu-
nity to resolve a purported conflict among the Re-
gions about the General Counsel's authority in
unfair labor practice cases and that of a hearing of-
ficer in a representation case. In two subsequent
letters to the Regional Office, SDC's attorney indi-
cated that the Region could rely on the informa-
tion obtained in the representation case as the basis
of the unfair labor practice charge.
In its Motion for Summary Judgment, the Union
contends that the charge filed by SDC "tracks" all
of the allegations of the complaint in the present
case . The Union further notes that, in the course of
filing the charge, SDC's attorney signed the state-
ment at the bottom of the charge form which
reads: "I declare that I have read the above charge
and that the statements are true to the best of my
knowledge and belief." The Union, therefore, con-
tends that the charge filed by SDC's attorney must
be construed as an admission that SDC engaged in
the conduct alleged in the charge, which is the
same conduct that is alleged in the complaint in the
present case.
The General Counsel's Amended Motion for
Partial Summary Judgment is similar to that of the
Union, but it contends that SDC's charge consti-
tutes an admission as to the allegations of para-
graph 6, but not paragraph 7, of the complaint.
278 NLRB No. 97
SDC INVESTMENT
The General Counsel notes that SDC, through its
attorney, not only filed the charge against itself but
also, in support of the charge, authorized the Gen-
eral Counsel to rely on evidence gathered during
investigation of the related election objections case.
The General Counsel therefore contends that there
are no factual issues warranting a hearing and that
summary judgment must be granted as to the alle-
gations of paragraph 6 of the complaint.
We do not agree. The letter accompanying the
charge filed by SDC's attorney makes it clear that
the purpose of filing the charge was to present the
Board with an issue concerning the authority of
hearing officers to rule on certain matters in elec-
tion objection cases. Regardless of the wisdom of
filing a charge against his own client for this pur-
pose, it 'is clear that SDC's attorney was not
prompted to file the charge by a belief that SDC
actually had committed the conduct alleged in the
charge. To the contrary, it is apparent from the
letter accompanying the charge and from SDC's
answer in the present case, in which it denies com-
mitting the alleged unfair labor practices, that SDC
had no intention of admitting that it had engaged
in any unlawful conduct and that it maintained that
it had not engaged in any unlawful conduct. More-
over, it is clear from the circumstances of the case
and from the -attorney's letter that the charge was
filed as a procedural device in order to present a
particular legal issue to the Board and that the
statements contained in the charge were not reflec-
tive of a belief by SDC or its attorney that SDC
had actually committed the alleged violations.
Under, such circumstances, we are reluctant to
grant motions for summary judgment. The state-
ments constituting the purported admissions do not
reflect the party's belief that they are true state-
ments, but rather, were made for a different pur-
695
pose.2 Accordingly, we conclude in this case that
issues of fact have been raised with respect to the
allegations of the complaint that can best be re-
solved by an administrative law judge.
Having stated the foregoing, we feel compelled
to state our strong disapproval of the procedural
machinations resorted to by SDC's counsel in this
matter. Quite apart from the questionable legal
premise which evidently prompted this legal folde-
rol, the substantial resources of the parties and the
Board which have been expended to untangle the
disarray are a matter of great concern. The Board
is not without authority to deal with such instances
of aggravated misconduct and, if it recurs, is fully
prepared to do so.3
IT IS ORDERED that the Union's Motion for Sum-
mary Judgment and the General Counsel's Amend-
ed Motion for Partial Summary Judgment are
denied.
IT IS FURTHER ORDERED that the above-entitled
proceeding be remanded to the Regional Director
for Region 20 for further appropriate action.
2 The Board's decision in Ace Typographers, 252 NLRB 412 (1980),
relied on by the General Counsel, does not compel a contrary result. In
that case two employers, charged with violating Sec. 8(a)(5) of the Act,
denied in their answer a complaint allegation that they had refused to
recognize and bargain with the union "since on or about April 11, 1980."
This formal denial did not prevent the Board from granting the General
Counsel 's motion for summary judgment, because appended to the
motion was correspondence between the employers and the union that
revealed that the employers had refused to recognize and bargain with
the union since 11 April 1980. In granting the summary judgment motion,
the Board noted that the employers had not disputed the authenticity of
the appended letters Thus, the truth of the facts alleged in the complaint
was not in doubt. By contrast, in the present case, as noted above, the
statements contained in the charge filed by SDC's attorney do not reflect
a genuine belief by SDC or its attorney that such statements were true.
8 Although it is SDC's attorney who engaged in questionable conduct,
SDC, in its opposition to the Union's Motion for Summary Judgment,
contends that the Union 's filing of its summary judgment motion was so
improper that sanctions , including payments of SDC's expenses and attor-
ney's fees, should be imposed on the Union and its attorneys We deny
SDC's request as it is wholly without merit.