San Bernardino and Riverside Cties. District Council

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Bernardino and Riverside Counties District Coun- rcil of Carpenters (Aurora Modular Industries) and Jerry D. Turnbough. Case 21-CB-4878 April 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 26, 1974, a hearing in Case 21-CB-4814-4' was held before Administrative Law Judge David E. Davis.' On March 15, 1974, prior to the issuance of the Administrative Law Judge's Deci- sion in Case 21-CB-4814-4, the General Counsel filed a motion to reopen the hearing in Case 21-CB-4814-4 and to consolidate it with this case.3 The basis of the General Counsel's motion to consoli- date these cases and reopen the hearing was that this case involves the identical individuals and factual situa- tion as does Case 21-CB-4814-4. On March 18, 1974, Administrative Law Judge Davis denied the General Counsel's motion on the grounds that the General Counsel was merely seeking to add a new respondent, the District Council, and that the General Counsel did not aver that a new hearing is necessary to adduce newly discovered evidence or evi- dence not available at the time of the hearing. On March 26, 1974, the Administrative Law Judge issued his Decision in Case 21-CB-4814-4 in which he dis- missed the complaint against the Local in its entirety. Thereafter, the Respondent Council filed a motion to dismiss in this case on the grounds that the matters set forth in the complaint therein were fully litigated in Case 21-CB-4814-4. On April 8, 1974, the General Counsel filed an opposition to the Respondent District Council's motion to dismiss. On April 9, 1974, Administrative Law Judge Davis issued an order, attached hereto as an appendix, dis- missing the complaint against the District Council in this case in its entirety. In so ruling the Administrative Law Judge noted that, when it appeared at the hearing in Case 21-CB-4814-4 that the District Council rather than the Local may have been involved in some of the alleged unfair labor practices, the General Counsel in- sisted his evidence would show the,Local did commit all the alleged unfair labor practices; that the General Counsel did not seek to add the District Council as a I Local Union No. 1959, United Brotherhood of Carpenters and Joiners ofAmerica (Aurora Modular Industries), 217 NLRB 508, issued this day. 2 The complaint in Case 21-CB-4814-4 alleged that Respondent Local Union No. 1959 (hereinafter the Local) had engaged in certain violations of Sec. 8(b)(1)(B) of the Act. 3 Complaint issued in Case 21-CB-4878 on March 12, 1974, pursuant to a charge filed on March 4, 1974, against Respondent, San Bernardino and Riverside Counties District Council of Carpenters (hereinafter District Council) party or seek postponement of the hearing to effectuate a charge and complaint against the District Council; and, finally, that when the General Counsel sought to consolidate the cases and reopen the hearing he conceded that the identical individuals and factual situation were involved. The Administrative Law Judge found that the "failure to amend and consolidate the proceedings prior to the close of the hearing repre- sents a failure to afford due process to the Respond- ents," since due diligence would have resulted in the issues being tried in one hearing. He concluded that the General Counsel, by attempting to litigate this case in a hearing de novo, is seeking a third bite at the "cherry" which he could not in good conscience permit. There- after, the General Counsel filed a request for review of the Administrative Law Judge's order granting Re- spondent's motion to dismiss and the Respondent Dis- trict Council filed an opposition thereto. 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. As noted supra, the Administrative Law Judge dis- missed the complaint. Subsequently, as we indicated in the companion case herein (217 NLRB 508), the Supreme Court issued its decision in Florida Power & Light Co. v. Inte,national Brotherhood of Electrical Workers, Local 641, 642, 759, 820 and 1263, 417 U.S. 790 (1974). The Board has recently in Chicago Typo- graphical Union No. 16 (Hammond Publishers, Inc.), 216 NLRB No. 149 (1975), set forth its understanding of that Supreme Court decision. Consequently, we find it unnecessary to pass on the rationale utilized by the Administrative Law Judge for dismissal of the com- plaint herein. As the General Counsel in effect conceded, and the Administrative Law Judge found, this case involves for the most part the same individuals and factual situation as does 217 NLRB 508. The complaint herein at- tempts to place the liability for Turnbough's fine against the District Council. However, even if such liability is established it does not change the facts of this case. In our opinion, it would therefore serve no useful purpose to consolidate these cases and reopen the re- cord in 217 NLRB 508, or remand this case for hearing. On July 23, 1973, the Local which had a collective- bargaining agreement with the Company engaged in a strike which lasted until July 26, 1973. During the strike Turnbough, a supervisor and union member, crossed the picket line to work. A member of the Local filed a charge against Turnbough in which he alleged that Turnbough caused dissension among, the union members, worked behind the picket line, and violated the obligation. On November 19, 1973, the District 217 NLRB No. 81 SAN BERNARDINO AND RIVERSIDE CTIES. DISTRICT COUNCIL Council fined Turnbough for the violations set forth in the local member's charge. Prior to the strike Turn- bough functioned as a supervisor only. During the strike he, by his own admission, did 50 percent rank- and-file struck work and 50 percent supervisory work. Accordingly, for the reasons set forth in the compan- ion case, 217 NLRB 508 (issued this day), we shall dismiss the complaint in its entirety. 'I ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders the complaint herein be, and it hereby is, dismissed in its entirety. 4 Member Fanning concurs in the result , but only for the reasons set forth in his concurrence in the companion case, 217 NLRB 508. APPENDIX On February 26, 1974, a hearing was conducted before Administrative Law Judge David E. Davis in Case 21-CB-4814-4. At the outset of the hearing, in a preliminary discussion with counsel for the General Counsel and counsel for Respondent Local No. 1959, it became apparent that San Bernardino and Riverside Counties District Council- of Carpenters, Respondent herein, rather than Local No. 1959 may have been involved in some of the unfair labor practices alleged in the complaint in Case 21-CB-48114-4. The General Counsel at that point announced on the record that the evidence would show that Respondent Union Local 507 No. 1959 did in fact commit all the alleged unfair labor practices. During the course of that hearing counsel for Re- spondent Union herein filed a special and limited ap- pearance. Thereafter, counsel for the General Counsel orally amended the complaint in two particulars but did not then seek to amend the complaint to add Re- spondent Council as a party nor did he seek a postpone- ment of the hearing to effectuate a charge and com- plaint against Respondent Council. On March 15, 1974, after the close of the hearing in Case 21-CB-4814-4, the General Counsel filed a mo- tion to reopen that hearing and to consolidate it with the instant proceeding, Case 21-CB-4878. In support of that motion, the General Counsel conceded that the identical individuals and factual situation were in- volved. As this was plainly apparent during the course of the hearing, it is my opinion that the failure to amend and consolidate the proceedings prior to the close of the hearing represents a failure to afford due process to the Respondents. Clearly, the exercise of reasonable dili- gence would have resulted in the issues being tried in one proceeding rather than permitting the original pro- ceeding to terminate and to then follow with an attempt to relitigate all the facts and circumstances in a new proceeding. It seems to me that the General Counsel by attempt- ing to litigate Case 21-CB-4878 in a hearing de novo is seeking a third bite at the "cherry." I cannot in good conscience permit this. Accordingly, Respondent Council's motion is granted and the complaint in Case 21-CB-4878 is hereby dismissed in its entirety.