Kennicott Bros. Company

KENNICOTT BROS. COMPANY I Kennicott Bros. Company and Produce, Fresh & Frozen Fruits & Vegetables, Fish, Butter, Eggs, Cheese, Poultry, Florist, Nursery, Landscape & Allied Employees, Drivers, Chauffeurs, Ware- housemen & Helpers Union, Chicago and Vicin- ity, Illinois, Local 703, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 13-CA-18501 May 14, 1981 DECISION AND ORDER DIRECTING HEARING Upon a charge filed on March 5, 1979, by the Union, and duly served on Kennicott Bros. Com- pany, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 13, issued a com- plaint on April 9, 1979, against Respondent, alleg- ing that Respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that Respondent failed to notify or bargain with the Union before discontinuing, in December 1978, its practice of granting Christmas bonuses and before granting unilateral wage increases in January and February 1979. On April 19, 1979, Respondent filed an answer admitting in part, and denying in part, the allegations of the complaint. On April 10, 1979, the Regional Director for Region 13 dismissed a decertification petition, Case 13-RD-1214, filed on February 28, 1979, by Keith Schmoeller, herein called the Petitioner. The basis for dismissal was the pendency of the unfair labor practice complaint in this proceeding. On August 6, 1979, Respondent and the Union entered into a new collective-bargaining agree- ment. On that date the Regional Director informed the Union that if it withdrew its unfair labor prac- tice charge he would deny any request to reinstate the decertification petition. The Union then re- quested withdrawal of the charge, whereupon the Regional Director issued, on August 8, 1979, an order approving the request to withdraw the charge dismissing the complaint, and withdrawing the notice of hearing. On September 28, 1979, the Regional Director denied the Petitioner's request to reinstate the peti- tion in Case 13-RD-1214. However, the Board, pursuant to Respondent's request for review, rein- stated the petition on January 15, 1980. On March 256 NLRB No. 2 24, 1980, the Board denied the Union's motion for reconsideration of the reinstatement order. On March 31, 1980, the Union requested reinstatement of the unfair labor practice complaint. On April 16, 1980, the Acting Regional Director reinstated the charge, revoked the dismissal of the complaint, and reissued the complaint and notice of hearing. The Regional Director, on April 21, 1980, dis- missed the reinstated decertification petition based on the reissued complaint. On September 29, 1980, the Board denied Respondent's request for review of the Regional Director's second dismissal in Case 13-RD-1214. Respondent filed directly with the Board a Motion for Summary Judgment on September 18, 1980, contending that the reissuance of the com- plaint is barred by Section 10(b) of the Act. Re- spondent further contends that the Regional Direc- tor was without authority to reissue the complaint since the Union had not specifically requested that its charge be reinstated. Respondent therefore re- quests that summary judgment be entered in its favor and that the reissued complaint be dismissed. On October 2, 1980, the General Counsel filed a response in opposition to the Motion for Summary Judgment, with exhibits attached, contending that the charge was originally timely filed and was properly reinstated. On October 27, 1980, Respond- ent filed a reply to the General Counsel's response in opposition. On December 8, 1980, the General Counsel filed a motion for leave to file a response to Respondent's reply memorandum' and a re- sponse thereto. On December 23, 1980, Respondent filed an opposition to the General Counsel's motion. Ruling on the Motion for Summary Judgment On March 5, 1979, the Union filed the original charge in this case, alleging that Respondent had unilaterally granted a benefit to its employees and unilaterally withdrawn another benefit from them in violation of Section 8(a)(5) of the Act. After in- vestigation, a complaint was issued on April 9, 1979. The following day the Regional Director dis- missed a decertification petition filed on February 28, 1979, giving as his reason the pendency of the unfair labor practice complaint. On August 6, 1979, the date Respondent and the Union signed a new collective-bargaining agree- ment, the Regional Director informed the Union, in writing, that if the Union were to withdraw its unfair labor practice charge he would not reinstate the previously dismissed decertification petition if so requested. The Union promptly accepted this We herein grant the General Counsel's motion. KENNICOTT BROS. COMPANY II 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD offer and requested the withdrawal of the charge underlying the complaint. The Regional Director equally promptly approved the request and dis- missed the complaint. In due course, pursuant to his August 6 inducement of withdrawal, the Re- gional Director did deny the Petitioner's request for reinstatement of his decertification petition. However, pursuant to Respondent's request for review, the Board reinstated the petition finding no warrant for the Regional Director's apparent con- clusion that the signing of the August 6 contract constituted on Respondent's part an informal settle- ment of the complaint. The Board also noted that since the charge had been withdrawn there was no longer a basis for finding proven unfair labor prac- tices which would preclude the Petitioner's raising of a question concerning representation. In then denying the Union's motion for reconsid- eration of the reinstatement order, the Board con- sidered for the first time the Union's detrimental reliance argument presented here by the General Counsel in response to the Motion for Summary Judgment. The Board had before it in the motion for reconsideration only the impact of the alleged detrimental reliance on the validity of the Regional Director's action in dismissing the decertification petition. The Board found the Union's argument in this respect to be lacking in merit. We note that the Union's contention that it was at least entitled to the reinstatement of the complaint was not then properly before the Board as it is within the Gen- eral Counsel's sole discretion to reissue a previous- ly dismissed complaint based on an originally timely filed charge. The Regional Director, acting for the General Counsel, then reinstated the complaint pursuant to the Union's request, which was based on the Re- gional Director's promise of August 6.2 Since a blocking unfair labor practice charge and com- plaint were once again in place, the Regional Di- rector dismissed the decertification petition for the second time. The Regional Director specifically stated that should no merit be found to the unfair labor practice allegations the petition could be rein- stated once again. The Board, in affirming the Re- gional Director's action, noted that Respondent's arguments pertaining to the propriety of the reis- suance of the complaint were not properly directed to the Board at that time. The appropriate time has now come and we therefore address the Respondent's Motion for Summary Judgment which contends that the reis- 2 The Union's reliance on the Regional Director's promise is docu- mented by its March 24, 1980, motion for reconsideration of the Board's order reinstating the petition. Though the Union requested the reinstate- ment of the "complaint," the Regional Director correctly read the inart- ful phraseology as a request for the reinstatement of the charge. suance of the complaint, more than a year after the alleged unlawful benefit changes, is time barred by Section 10(b) of the Act. Section 10(b) of the Act provides that no com- plaint shall issue based on any unfair labor practice occurring more than 6 months prior to the filing of a charge with the Board. This section, however, relates only to the actual filing of charges and, once a charge has been timely filed, the control over, and disposition of, that charge is vested ex- clusively with the General Counsel pursuant to Section 3(d) of the Act. Here there is no question but that the General Counsel issued the original April 1979 complaint based on the timely filed March 1979 charge relating to alleged unfair labor practices of December 1978 and January 1979. Respondent correctly states the Board's general rule that, where a charge has been filed, with- drawn, and later refiled, the 6-month limitation period specified in Section 10(b) is measured from the date of the refiling; the prior charge cannot be reinstated to revive liability to an earlier date.3 Re- spondent does recognize that the Board has, since Silver Bakery Inc. of Newton,4 formulated an equita- ble considerations exception to the general rule. It contends, however, that the conditions required by Silver Bakery and its progeny have not been met in this case. We disagree. In Silver Bakery the Board permitted the rein- statement of a charge to revive liability where the charging party had relied in its withdrawal requests on a mistaken statement by a Board agent to the effect that the Board lacked jurisdiction. In Public Services Planning and Analysis Corporation, d/b/a Airport Connection,5 the Board held, citing both Silver Bakery and California Pacific Signs, Inc., a case involving newly discovered evidence, that "the Board will not overrule the General Counsel's decision to reinstate a timely filed charge unless Respondent can show that the equities of the case compel such a result."7 We find no such showing by Respondent in this case. First, the Union at all times acted promptly. Not only was the original charge timely filed, but the request for reinstatement was made 1 week after the Board's denial of the motion for reconsid- eration of its order to reinstate the decertification petition. Second, Respondent has not claimed, nor 3 Olin Industries, Inc., Winchester Repeating Arms Company Division, 97 NLRB 130 (1951); Square D Company, 105 NLRB 253 (1953); Koppers Company, Inc.. Forest Products Division, 163 NLRB 517 (1967). See A & P Iron Works, Inc. and A & P Iron and Railing Corp., 179 NLRB 291 (1969). 4 150 NLRB 421 (1964), enforcement denied 351 F.2d 37 (Ist Cir. 1965). " 243 NLRB 1076 (1979). ' 233 NLRB 450 (1977). 7 243 NLRB 1076, 1077. KENNICOTT BROS. COMPANY 13 could it show on this record, that it has been preju- diced because of the dismissal and subsequent reis- suance of the complaint. Respondent has not changed its position to its detriment based on any actions of the General Counsel. The General Counsel in this case recognized, however, that the Union did rely on the Regional Director's opinion that reinstatement of the decerti- fication petition following withdrawal of the charge would be inappropriate. Since the Board later found the Regional Director to have erred, the Regional Director sought to rectify the effects of his faulty determination by returning the Union to the status quo ante and reinstating the charge, and then the complaint, pursuant to the Union's re- quest. We conclude, in the complex circumstances of this case, that the General Counsel has struck a proper balance between the policy of Section 10(b) to bar stale litigation, and the broad remedial policy of the Act. The Regional Director, acting on behalf of the General Counsel, did not abuse his discretion when he reinstated the complaint on the basis of the Union's reliance on the Regional Di- rector's incorrect opinion. We shall deny Respond- ent's Motion for Summary Judgment and allow the merits of the complaint to be decided following a hearing before an administrative law judge. ORDER It is hereby ordered that Respondent's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that a hearing be held before an administrative law judge to be designated by the Chief Administrative Law Judge for the purpose of receiving evidence on the issues raised by the allegations of the complaint. IT IS FURTHER ORDERED that the above-entitled proceeding be, and it hereby is, remanded to the Regional Director for Region 13 for the purpose of arranging such hearing, and that said Regional Di- rector be, and he hereby is, authorized to issue such notice thereof. IT IS FURTHER ORDERED that, upon the conclu- sion of the hearing, the Administrative Law Judge shall prepare and serve on the parties a decision containing findings of fact, conclusions of law, and recommendations based upon the evidence re- ceived, and that, following service of such decision on the parties, the provisions of Section 102.46 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, shall be applica- ble. KENNICOTI7 BROS. COMPANY '3