Super X Drugs Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1984

272 N.L.R.B. 1232 (N.L.R.B. 1984)

1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Super X Drugs Corporation and Rebecca Gregg
Cases 9-CA-20872-1 and 9-CA-20872-2
26 November 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 5 July 1984 the Regional Director for Region
9 of the National Labor Relations Board issued a
complaint against the Company the Respondent
alleging it has violated Section 8(a)(3) and (1) of
the National Labor Relations Act
The complaint alleges that from about 5 July
until about 6 September 1983 six employees of the
Respondent engaged in a strike The complaint fur
ther alleges that about 6 September 1983 the em
ployees made an unconditional offer to return to
work and to cease concerted activities Finally the
complaint alleges that sometime in late October or
early November 1983 and about 6 December 1983
the Respondent employed and/or transferred
Danny Lively and Wayne McAllister, respectively,
into positions at its Beckley West Virginia facility
without offering any of the six formerly striking
employees an opportunity to fill the positions The
complaint further alleges that the Respondent en
gaged in the conduct because the employees sup
ported the Union and engaged in concerted activi
ties By that conduct the complaint alleges the
Respondent discriminated against the employees in
violation of Section 8(a)(3) and (1) of the Act
On 16 July 1984 the Respondent filed an answer
to the complaint admitting and denying, in part
the allegations in the complaint and raising an af
firmative defense that the action is barred by the
doctrine of res judicata Subsequently on 25 July
1984 the Respondent filed a Motion for Summary
Judgment based on res judicata A brief and exhib
its were attached to the motion On 30 July 1984
the Board issued an order postponing the hearing
transferring the proceeding to the Board and re
quinng that cause be shown why the Respondent s
Motion for Summary Judgment should not be
granted On 13 August 1984 the General Counsel
filed a brief in opposition to the Respondent s
Motion for Summary Judgment
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Ruling on Motion for Summary Judgment
The Respondent argues that the allegations of
the complaint in this case were already decided in
a previous case against the Respondent 1 The pre
vious case involved a number of allegations includ
ing an 8(a)(3) and (1) allegation The complaint
stated that the same six employees at issue in this
case were engaged in an unfair labor practice strike
from about 5 July to about 6 September 1983 The
cOmplaint further stated that about 6 September
1983 the six employees who had engaged in the
strike made an unconditional offer to return to
their positions but the Respondent failed and re
fused to reinstate the employees Administrative
Law Judge Thomas Ricci found among other find
ings in the previous proceeding that contrary to
the complaint allegation the strike which was start
ed 5 July 1983 by the six prounion employees was
an economic strike and not an unfair labor practice
strike The judge dismissed the 8(a)(3) and (1) alle
gatton that the Respondent improperly refused re
instatement to any returning strikers
The Respondent claims res judicata applies be
cause both cases involve the same time periods the
same parties and the same acts on the part of the
Company The Respondent contends that the only
difference is the legal theory which in the previous
case rested on the strike being an unfair labor prac
tice strike while in this case the complaint assumes
it is an economic strike The Respondent also
argues that in the previous case there was testimo
ny regarding Lively s transfer into its store in
Beckley, West Virginia The Respondent therefore
argues that the administrative law judge in the pre
vious case must have found Lively s transfer was
not discriminatory 2
We find no merit to the Respondent s arguments
The Respondent s argument that res judicata ap
plies in this case is incorrect since the cause of
action in the instant case is not the same as the
cause of action adjudicated in the first case Fur
The previous proceeding in Case 9-CA-19944 et al was heard by
Administrative Law Judge Thomas A Ricci on 14 and 15 March 1984
The judge Issued his decision 29 June 1984
2 The Respondent relies on a portion of the judge s decision to show
that Judge Ricci found Lively s transfer into the store or employ was not
discriminatory under any legal theory regardless of whether the striking
employees were unfair labor practice strikers or economic strikers That
portion says
On 10 September the Union abandoned the strike and all the sink
ers offered to return to work They were told there NA. ere no jobs
available and none were reinstated In the interval between 5 July
and 10 September two replacement employees had been hired
Aside from those two all employees at work were regular employ
ees of the Company who had been with the Company continuously
from back before the strike started There therefore is no proof that
the Respondent Improperly refused reinstatement to any returning
strikers
We disagree with the Respondent that the judge has already decided
Lively s transfer was not discriminatory thereby precluding the current
claim This passage specifically limits itself to the time period between 5
July and 10 September 1983 The General Counsel claims Lively was not
transferred and/or employed at the Beckley store until after those dates
sometime in late October or early November 1983
272 NLRB No 192
SUPER X DRUGS CORP 1233
thermore, the events giving rise to the two pro
ceedings occurred at different time periods In the
first case the issue was whether the Respondent
violated Section 8(a)(3) and (1) by refusing to rein
state unfair labor practice strikers after their uncon
ditional offer to return to their jobs The issue in
this case is whether the Respondent violated Sec
tion 8(a)(3) and (1) by unlawfully refusing to rec
ognize the preferential reinstatement rights under
Laidlaw3 of former economic strikers who made an
unconditional offer to return to work by employing
and/or transferring two persons The time period
at issue in the first case was about 6 September
1983, the alleged date that the Respondent refused
to reinstate the unfair labor practice strikers after
their unconditional offer to return to work The
material time periods in this case are in late Octo
z Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cm
1969) cert denied 397 U S 920 (1970)
ber or early November 1983 when the Respondent
allegedly transferred and/or employed Danny
Lively and on 6 December 1983 when the Re
spondent allegedly transferred and/or employed
Wayne McAllister at its Beckley West Virginia fa
cility instead of the economic strikers
Furthermore we find any testimony about Live
ly s transfer in the first case was incidental to the
main thrust of that case At no point in the previ
ous case or proceedings was McAllister s name
mentioned so the claim at issue here involving
McAllister s employment could not have been ad
judicated in the previous case
ORDER
It is ordered that the Respondent s Motion for
Summary Judgment be dented
IT IS FURTHER ORDERED that the above entitled
proceeding be remanded to the Regional Director
for Region 9 for further appropriate action