Maremont Corp.

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