North Electric Co.

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.