Ventura Coastal Corporation

VENTURA COASTAL CORPORATION Ventura Coastal Corporation and Warehouse, Processing and Distribution Workers Union, Local 26, International Longshoremen's & War- ehousemen's Union and Fritz Conle. Cases 31- CA-8576 and 31-CA-9294 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On August 26, 1981, Administrative Law Judge Timothy D. Nelson issued the attached Decision in this proceeding. Thereafter, counsel for the Gener- al Counsel filed exceptions and a supporting brief, Fritz Conle pro se filed exceptions and a supporting brief, and Respondent filed an answering brief. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established polic) not to overrule an administrative law judge's resolutions with respect ItI credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We hae carefully examined the record and find no basis for reversing his findings. 2 We adopt the Administrative Law Judge's dismissal of the allegation of "independent" discrimination against Conle upon his return from layoff in April 1979, only because Conle withdrew the charge We dis- avow that Ixrtiion of the Administrative Law Judge's rationale which is based on the General Counsel's sub silentio dismissal of the charge. DECISION STATEMENT OF THE CASE TIMO'THY D. NELSON, Administrative Law Judge: These consolidated cases were heard by me at various locations in Ventura County, California, on January 14- 16 and 20-22, 1981. They arose as follows: Warehouse, Processing and Distribution Workers Union, Local 26, International Longshoremen's & Warehousemen's Union (herein ILWU or the Union), filed original and amended charges in Case 31-CA-8576 against Ventura Coastal Corporation (herein Respondent) on. respectively, De- 264 NLRB No. 54 cember 6, 1978, and January 29, 1979.' Fritz G. Conle (herein Conle), an individual, filed charges in Case 31- CA-9294 against Respondent on August 16, 1979. On July 18, 1980, the Regional Director for Region 31 of the National Labor Relations Board (herein called the Board) issued an order consolidating cases, consolidated complaint and notice of hearing against Respondent al- leging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act (herein called the Act). Respondent duly answered, admitting that its oper- ations were subject to the Board's jurisdiction, but deny- ing all substantive allegations of wrongdoing. Respond- ent also moved to dismiss the complaint on a variety of procedural grounds. These included assertions that: The General Counsel's failure to issue a complaint within a reasonable time after the original charge was filed preju- diced Respondent and violated the Administrative Proce- dure Act (herein called APA): the bulk of the consoli- dated complaint addressed matters which had occurred prior to a settlement agreement, and the General Counsel was thus estopped from subsequent attempts to litigate presettlement matters; and a new allegation which the General Counsel amended into the complaint at the hear- ing was barred from litigation under the 6-month "limita- tions" rule contained in Section 10(b) of the Act. All parties were given full opportunity to participate in the hearing proceedings and to file post-hearing briefs. Respondent and the General Counsel submitted such briefs, and I have given them careful consideration. Issues Respondent's answer and related pleadings raise im- portant procedural issues which must be resolved before the substantive complaint allegations may be addressed. They are: 1. Did the office of the General Counsel violate the mandate of the Administrative Procedure Act that pro- ceedings before it be concluded within a "reasonable time" by taking roughly 19 months after the filing of the central charge herein before issuing a complaint which itself addresses, in the main, alleged misconduct by Re- spondent occurring roughly 2 years prior to the date on which the complaint issued? 2. If so, does this warrant dismissal of the complaint without regard to its potential merit? 3. Is a determination of the merits of all but one of the outstanding complaint allegations barred by the fact that the alleged misconduct to which those allegations refer occurred prior to a settlement agreement with which Re- spondent has complied? 4. Is a determination of the merits of the remaining outstanding allegation barred under Section 10(b) of the Act because the corresponding portion of the underlying charge had been dismissed and/or withdrawn, and no new charge over the same matter had been filed within 6 months of its occurrence? I The gr:inal charge. although signed h; the 11. 'L1. expressl, noted on it, face that the charge was being filed "on behalf of Fritz Conlc. an emploNee of Ventura Coastal Corp " and its substanlive allegations were ss ritten ir the first ptrson. as if said Conil were the signer 291 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Resolution of those questions must take priority, and that may not be done without an exposition of the com- plex procedural background and a general summary and overview of the key events which are the subject of the complaint allegations. I first summarize below the nature of the complaint before setting forth other salient back- ground details. Outstanding Complaint Allegations The outstanding substantive allegations in the com- plaint are:2 Paragraph 7 On or about June 19, 1978, Respondent demoted Fritz Conle from the position of leadperson in its shipping department, and since that date has failed and refused, and continues to fail and refuse, to fully reinstate Fritz Conle to his former position of employment. Paragraph 8 During the period from late June 1978 through July 17, 1978, the exact date presently unknown, Re- spondent denied consideration to Fritz Conle for a promotion and transfer to the position of forklift driver in its "juice plant" or Produce [sic] [see below] Division, and since that date has failed and refused, and continues to fail and refuse, to consider Fritz Conic for this promotion and transfer. Paragraph 103 As a result of the conduct described above . . . on or about October 13, 1978, Respondent selected Concl for layoff, and since that date has failed and refused, and continues to fail and refuse, to reinstate Conle to the position of leadperson in the shipping department or forklift driver in the juice plant, or to a substantially equivalent position if those positions no longer exist. a I do not include here the allegation contained in complaint par. 6 which stated: In late March, 1979, ". [Respondent told an employee] that an- other employee would not be hired because that employee had pro- vided information to the [Board] .... This allegation was amended in a minor way at the start of the hearing. but no proof was ever offered in support of it. Counsel for the General Counsel represented before resting her case-in-chief that she had been unable to secure the presence of the witness who would testify in support of this allegation, and that his current whereabouts were unknown. She further represented that the absent witness' testimony was "not essential to support the main allegations of the complaint involving Mr. Conic." Thus, she represented that, after consulting with her Regional Office, it had been determined not to seek a continuance of the proceedings to at- tempt to compel said witness' presence. I therefore granted Respondent's motion to dismiss the allegations of par. 6 at the time that counsel for the General Counsel rested her case-in-chief Concl himself sought unsuccess- fully to achieve service of a separate subpoena on the absent witness, and, failing that, moved for a continuance to enforce the General Counsel's subpoena. The General Counsel opposed that motion. I denied it for the reasons set forth at tr. 770-778: 1054-1060. 3 As amended at the hearing. this allegation is now numbered par. 10(a). The General Counsel amended the original par. 10 to include an alternative allegation, numbered 10(b). See discussion below. A digressive commentary is in order here: The July 18, 1980, complaint attacks conduct by Respondent which took place in 1978.4 More specifically, a close reading discloses that the complaint challenges, at bottom, only Respondent's alleged demotion of Conle from a shipping department leadman's job in June 1978 and its alleged discriminatory denial to Conle in July 1978 of a transfer to a vacant forklift job in its juice plant. Paragraph 10 in its original form, which refers to a wrongful layoff of Concl in October 1978, is grounded on the supposition that, but for either or both of the al- legedly discriminatory acts in June or July 1978, Concl would have held a position (leadman or forklift driver) which assertedly would have immunized him from a general layoff of other employees which took place in October 1978. That layoff is not, in itself, challenged as having been discriminatorily prompted. Neither is Conle's inclusion in that layoff under such a challenge, except insofar as it may have been the "result" of the earlier alleged discrimination against him in June-July 1978.6 In short, as originally drafted, the paragraph 10 allega- tion pertaining to the October 1978 layoff of Conle is not an allegation that Respondent independently discriminat- ed against Conle by selecting him for layoff. Rather, it is an allegation that Conle was included in the layoff be- cause he then occupied a position which he would not have occupied had he not been discriminated against in June-July 1978. There is a question of whether paragraph 10 encom- passes any claim by the General Counsel that Respond- ent independently discriminated against Conle after his October 1978 layoff. There is this conclusive indication, apart from the text of the original paragraph 10, that the complaint was not intended to address any actions by Respondent against Concl upon his return from layoff, except insofar as they amounted to a continuation of the alleged discrimination against him in June-July 1978. Thus, on January 6, 1981, shortly before this hearing started, counsel for the General Counsel wrote to coun- sel for Respondent, stating in pertinent part:7 At the trial . . . the General Counsel intends to offer evidence that Respondent failed to give Fritz Conic a position as a leadperson or forklift operator when he was recalled on April 24, 1979. In our view, these are specific instances of Respondent's continuing failure and refusal to reinstate Conle to his former position as leadperson in shipping as de- scribed in paragraph 7.. . and of Respondent's con- tinuingfailure and refusal to consider Concl for pro- motion and transfer to the "juice plant" as a forklift operator as described in paragraph 8 .... [Empha- sis supplied.] 4 Excepting only the matters raised by the no-longer-viable par. 6 (see fn. 2), and the matters raised by the hearing amendment to par. 10 (see below). As counsel for the General Counsel acknowledged at tr. 255. As counsel for the General Counsel acknowledged at tr. 64:20-65:1. 7 G.C. Exh. 3. 292 VENTURA COASTAL CORPORATION The italicized passages thus make clear the General Counsel's view that the complaint did not encompass any theory that Respondent independently discriminated against Conle upon his recall. Rather those passages plainly reveal only an intention by the General Counsel to make clear that paragraph 10 was to be read in con- junction with paragraphs 7 and 8 and to perserve the General Counsel's position that Respondent's June-July 1978 discrimination against Conle was not remedied by its recall of him in April 1979 to a different position. But, in so doing, the General Counsel has again clearly re- vealed that the merits of the original paragraph 10 may be reached if, and only if, the June-July 1978 alleged dis- crimination is not barred from consideration by a settle- ment agreement discussed hereafter. After an extensive colloquy between and among coun- sel and the bench in the early stage of the hearing coun- sel for the General Counsel eventually contended that paragraph 10 was also intended to challenge certain inde- pendent treatment accorded to Conle after he was re- called from layoff in April 1979. This was done to ac- complish a partial delinkage of paragraph 10 from the al- legations of paragraphs 7 and 8, and to avoid the poten- tial consequence that paragraph 10 would fall if Re- spondent's "settlement bar" defense were sustained or if paragraphs 7 and 8 were dismissed on their merits. I per- mitted her to offer an express amendmcnt which would clearly encompass an alternative theory, i.e., one not linked to paragraphs 7 and 8, that Conic had been inde- pendently discriminated against at the time of his recall by Respondent's assigning to him a less desirable job than the one he had performed immediately before the layoff. The General Counsel then offered this written amend- ment, numbered paragraph 10(b): On or about 4/23/79, Respondent recalled Concl to work as a general laborer cleaning and pushing storage boxes, a less desirable position than Concl had heretofore [sic] occupied, and since said date has failed and refused, and continues to fail and refuse. to consider Conle foi promotion to more de- sirable positions of employment [because of his union or other protected activities]. In summary, therefore, to the extent that paragraph 10(b) does not necessarily depend for a favorable adjudi- cation on a finding that Respondent unlawful discrimi- nated against Conle in the presettlement period (June- July 1978). it has standing as a genuinely independent al- legation which must be decided without regard to the disposition of the settlement bat defense. All other out- standing allegations are so inextricably linked to alleged presettlement discrimination against Conle that they may be addressed if. and only if, the settlement-bar doctrine is not applicable. In addition, however, paragraph 10(b) is itself subject to a defense under the "limitations" rule contained in Section 10(b) of the Act. For Conle had. before the Gen- eral Counsel's hearing amendment to include paragraph 10(b). withdrawn a portion of his charge in Case 31 CA- 9294 which. Respondent argues. enwonipassed the allcga- tion that he had been independently discriminated against after his April 1979 recall from layoff-thus inviting the defense that a complaint over that matter was barred by the failure to file an appropriate charge %within the 6- month limitations period prescribed in Section 10(b) of the Act. Procedural Background and Factual Overview8 Respondent, a subsidiary of the Seven-Up Company, is a California corporation engaged at various locations in Ventura County, California, in processing and packing fresh lemons and frozen lemon concentrate. It has two administrative divisions: The fresh fruit division consists, inter alia, of two packing houses-one at Montalvo and the other at Ventura. Lemons are brought to these pack- ing houses for cleaning, grading, packing, and shipping to customers. The products division (commonly called the "juice plant") is located at Ventura, where lemon oil and frozen lemon concentrate are extracted, canned, and stored in cold storage warehouses until shipment. Re- spondent employs large numbers of Hispanic employees at both locations who have little or no fluency in Eng- lish. Conle, who is fluent in English and Spanish, was hired by Respondent on December 13, 1977, to work as a fork- lift operator in the shipping department at the Montalvo packing house. He came to that job with an extensive background of involvement in organizational and repre- sentational work for the United Farm Workers of Amer- ica (UFWA), including in lemon groves which serve Re- spondent's processing and packing operations. He omit- ted reference to this employment background when he applied for work with Respondent and falsified his appli- cation in a number of other respects in order to camou- flage his UFWA background. Shortly after his hire, Conle initiated contact with the II-WU and became that union's principal in-house orga- nizer in an attempt through the Board's representation processes to win bargaining rights for a unit limited to Respondent's packing house employees. The organiza- tional effort took place over the period March-December 1978. The Union did not file a petition for representation until December 15, 1978.9 As early as April 1978, however, Respondent had become aware of the union organizational effort and of Conle's role in it. Thus, on April 27, 1978. Respondent's recently appointed personnel manager, William Dore, held an "action meeting" attended by various manage- ment representatives and employees, including Conlec. During that meeting, Dore raised the subject of the orga- nizational activity then taking place and invited employ- Except as may he specifically noted hereafter. the'e general findings are baed iil undisputed and credible testimony. C9 ase 31-RC-4372. in which the Regional Director for Region 31 a;Wied a Directinn of Election on Februars 22. Iq79 'The Direction of Election ilnchded a delermination that a ,uhslanlial number of laid-off eniployees x ere not eligible to ote -thi uinderminling the Union's ex- 'I .t;,,n, for a j i ' 'rable .ote The Union iOa ight eicit, h) the Board of this dc erlmlnatin Ithe Board granted reilc and mlodlfied the Re gion al DIrec or', eihgihility determination (see Recp E 1 h 2() 1 he L nln ultmai.l ) i' ithilres it, petitiol and the clection. '..hch had been %.hed- iuled for kia, 'I lqfu ',sa neer held DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees to discuss any problems they might be having. Dore also mentioned the current status of certain wage survey studies which Respondent was implementing and made reference to a planned review of other benefit programs. Dore also advised employees that they were not obliged to let union organizers into their homes, and warned em- ployees that any authorization cards they might sign were not "confidential," but, rather, that Respondent would be entitled to see them. Conle spoke up to chal- lenge this latter assertion by Dore, claiming that it was his understanding that the Board kept such cards confi- dential. Dore rejoined that he knew of court cases which permitted disclosure of such cards to employers. Conle further debated with Dore over the question whether a union would be able to improve the employees' working conditions. Shortly afterwards, Dore telephoned Mon- talvo Warehouse Foreman Pete Ballestero to complain that Conle had been a "thorn in his side" and to urge Ballestero not to send Conle to any further meetings. On May 5, 1978, Conle filed an unfair labor practice charge against Respondent in Case 31-CA-7972, which stated in pertinent part as follows: Since on or about April 27, 1978, [Respondent] has coerced and restrained the undersigned and other employees by promising benefits and making threats including closing the plant. On July 10, 1978, Conle filed an amended charge in that case which stated in pertinent part as follows: Since on or about April 27, 1978, [Respondent] in- terfered with, restrained and coerced the under- signed and other employees by promulgating an overbroad nonsolicitation rule, and by creating the impression of surveillance. On or about May 9, 1978, [Respondent] unlawfully granted benefits to its employees. Based on factors which are not presently necessary to detail exhaustively, Conle believed that he was being groomed for promotion at the Montalvo packing house. One significant factor, according to Conle, was that Montalvo Warehouse Manager Pete Ballestero told Conle on June 3, 1978, that Ballestero wished to promote him to a "lead" job in charge of the shipping department because the incumbent in that job, Manuel Alvarado, was about to be promoted to a job as foreman in the washing department. According to Conle, Ballestero had made some reference to "problems" that Conle was having with the "main office," but Ballestero had agreed with Conle that these "problems" had no bearing on Conl 's job performance. Conle states that he was in- stalled as shipping department leadman on June 5, and continued in that role until June 17 when Ballestero told him that it had been decided instead to give the lead shipping job to Saul Rosales, and that Conle would serve as Rosales' assistant.' "' Ballestero disputes key details of Conle's account as summarized in this paragraph About a week after his alleged demotion, Conle ap- plied in writing for a vacant forklift operator's job in the "juice plant" in response to a written announcement of that vacancy dated June 17 which had been posted at Montalvo. About 2-3 weeks later (i.e., in or about early July 1978), Conle was told by a personnel assistant that the forklift job in the Ventura juice plant had been given to someone else. Shortly thereafter, on July 28, Respondent discharged Personnel Manager Dore. By this time, the Regional Di- rector had concluded his administrative investigation of the charges Conle had filed earlier in Case 31-CA-7972. The Regional Director found partial merit to those charges based in large part on Dore's remarks in the April 27 "action meeting," as summarized above, and had begun settlement negotiations with Respondent. Re- spondent executed a proposed settlement agreement on June 31."1 At some point between July 29 and 31, Dore tele- phoned Conle, saying that he had information which would be "useful" to Conle, and expressing the belief that Conle had been "wronged" by Respondent. Conle met personally with Dore on the evening of July 31 and took a written "declaration" from Dore. In that declara- tion,' 2 Dore reported, in substance, that he had had con- versations with Ballestero shortly after the April 27 "action meeting" in which it was discussed that Conle was a union "organizer" or "plant," that after Conle filed the original charge in Case 31-CA-7972 Conle had been the subject of frequent discussions involving Dore and high-level management officials, and that consideration had been given to refusing to recall Conle from a 10-day layoff which had taken place in late April or early May, but that it was decided instead to recall Conle, to watch him closely, and to give him dirty and menial jobs in hopes that he would quit. Dore further reported that Conle was kept under "surveillance" during the process- ing of Conle's unfair labor practice charges in Case 31- CA-7972. Dore further claimed that he had told Balles- " The settlement agreement (Resp Exh 3(a)) then eix uted by Re- spondent in Case 31-CA-7972 contained a tilnadmishin clause for Re- spondeit's benefit, but contained nlo other special reservations. It pro- vided, in substance, that Respondent would pot the rr:lmedial notice at- tached to it for 60 consecutive dass Although the attichcd notice was written in English. it is undisputed that Respondent and the Regional Di- rector had agreed that a counterpart Spanish-language notl: wtluld also be prepared by the Region and posted by Respondent during the same period. The notice contained standard preamble language setting forth employees' rights under the Act, together with the general assurance that employees are free to become or remain, or refrain Iiroun beconminig or remaining, members of any union" It addition, the nlitite contained the following provisions: WE III I Nt' create the inipressllon of surseillan, hby telling our employees that rte will see the illitents of coinfidenlilal authorization cards signed by them Wi! Will NOI request our cmnplol)es to infoirnl supervisors about fellow employees or uililln orgalnizers wsho persistentls soh!it them to sign a union card. WE Wll I NOI grant our employ)ees additional paid vacationl days or an) other benefits in order to induce thetmi to refrain Irnitl supporting ian) labor organizailon; hoi\s. eer, nothing in this SCettcilelit Agree- meint requi es us to modify osr hailge the hltefits our cmplo.ice, now enjoy ]: ALJ Exh 2 is the originall .rihtig 294 VENTURA COASTAL CORPORATION tero not to promote Conic to the lead job in the shipping department which Ballestero had planned to give to Concl because higher management had discussed it and did not want to give that job to a "union man." Finally, Dore disclosed in the July 31 declaration that he had told Ballestero and other management officials not to grant Conle's later request to transfer to the forklift va- cancy in the juice plant because that would permit Concl to organize employees at that location, and that Re- spondent could "legally" promote someone to that job from within the juice plant instead.' 3 After Dore had made these disclosures, and had signed the declaration, Dore told Concl that Dore intended to contest his own discharge by Respondent before the California Department of Industrial Relations, Division of Labor Standards Enforcement (alleging in substance that he had been fired for being too militant in trying to correct "safety" hazards at Respondent's facilities). Dore therefore asked Conle to treat his declaration as "confi- dential" until such time as Dore had exhausted his action before the state agency. On August 3, an attorney agent of Region 31 wrote to Conle inviting him to sign the proposed settlement agree- ment in Case 31-CA-7972, which Respondent had al- ready executed. 4 On August 20, Conle wrote to the Regional Director, stating that he would not join in the settlement agree- ment unless the notice was revised in certain particulars to make its text more comprehensible to Respondent's employees. I 6 Although he was by this time fully aware through Dore of evidence of discrimination against him which would support additional charges under Section 8(a)(l) and (3) of the Act, Concl did not disclose the same to the Regional Director. Neither did Concl in any way advise the Region that he had reason to believe that Re- spondent was guilty of additional wrongful practices. On August 29, the Regional Director approved the settlement agreement unilaterally, so notifying Conle by letter of the same date.' That letter further advised Conic of his right to appeal the Regional Director's re- fusal to issue a complaint and notified him that, to be timely, Conle's appeal must be received by the General Counsel's Office of Appeals in Washington, D.C., on or before the close of business on September 11, 1978. Conie filed an appeal dated September 7, but postmarked September 11, and which was not received until Septem- ber 14. By letter dated September 25, the Office of Ap- peals therefore denied Conle's appeal as untimely.' 7 By its terms, the settlement did not become effective until that point. 'l Dore's account was substantially denied by key management agents of Respondent at the hearing, including Ballestero. 14 G. C Esh 7. Without going into detail. it appears that the Board agent inadvertently enclosed a notice attached to the settlement agree- ment in the August 3 letter to Conic which was not the same as the notice which Respondent had agreed to post, but, rather contained an earlier proposed notice which Respondent had rejected. The differences between them are not significant for purposs of further discussion below. 1'GC Exh 8 16 Resp. Exh. 7 " Resp Exh 5 The record does not disclose precisely when Region 31 transmitted notices for Respondent to begin posting for 60 days pursuant to the settlement agreement, but it was evidently done in October 1978, before October 30; for on that date Conle wrote to an agent of Region 31 complaining about several features of Respondent's com- pliance with the settlement agreement-including the fact that, contrary to the agreement's terms, only an English-language notice had been posted. In addition, Concl complained that there had been a recent layoff of substantial numbers of employees, thus minimizing the impact of the notice. It is also of some significance to the settlement-bar issue discussed below that Concl further advised the Region in his October 30 letter as follows: Finally, it is my understanding that the Longshore- men's Union will shortly be filing additional unfair labor practice charges as a result of other company ac- trivities at Ventura Coastal. I would appreciate it if you would look into the objections I have raised. [Empha- sis supplied.]I' On November 7, 1978, the Regional Director replied to Conle,' 9 explaining that the Region had mistakenly mailed to Respondent for posting only an English-lan- guage notice and that, upon discovering this error, the Region had immediately mailed to Respondent copies of Spanish-language notices as well. The Regional Director further explained that Respondent had assured the Region that it would immediately post the Spanish no- tices and would agree to extend the posting period so that notices in both languages would be posted for the full 60 days provided in the settlement agreement (i.e., "through the end of December 1978").20 The Regional Director did not comment regarding Conle's statement in his October 30 letter that the Union was about to file "additional" charges which Conle had said had grown out of "other company activities"; nor did the Region inquire in any manner into what Conic was referring to in that passage. It is therefore evident that the Region determined to proceed with the imple- mentation of the settlement agreement even though it had been put on a form of notice by Conic that charges would "shortly" be filed concerning additional alleged unfair labor practices by Respondent, and despite Conle's request that the Regional Office "look into the objections that [Conle had] raised." On November 20, 1978, a hearing was held before a labor commissioner of the California Department of In- dustrial Relations concerning former Personnel Manager Dore's charge that he had been discharged by Respond- ent in retaliation for his attempts to rectify safety prob- lems. On November 27, the commission issued a written decision in favor of Respondent, in which he found that Dore had been discharged because of unsatisfactory job performance and that his discharge had been under con- [G ( C Exh 5 ' G C Exh 10 20 From this latter cxplanation. I inter that Respondent had not begun complying %sith the essential notice-posting in both languages until on or about Novenmber I. 178 295 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sideration by Respondent before Dore had engaged in his safety-related activities. Shortly after this, on December 6, 1978, the ILWU filed charges in Case 31-CA-8576 which addressed the matters revealed by Dore to Conle in July.2 ' Conle had been included in a general layoff of employ- ees in October 1978. As noted above, it is not contended that Conle was discriminatorily selected for layoff. Rather, paragraph 10(a) of the complaint alleges that Conle's October 1978 layoff was "a result" of Respond- ent's allegedly discriminatory practices against Conle in June-July 1978, thus putting him in a job which made him vulnerable to layoff. Conle returned from that layoff on April 23, 1979, and was permitted to go to work even though Respondent's recall notice had given him a deadline for returning of April 18. He was then assigned to a task which he found disagreeable, cleaning and stacking used lemon boxes. Conle made periodic inquiries of supervisors whether he would be assigned to a forklift job, and was told that there were none then available. After working on the box cleaning for about 8 days, he stayed home from work on May 3, 1979, then telephoned Respondent on May 4 and announced that he was quitting. Conle thereafter filed two unfair labor practice charges over events relating to his recall from layoff and his subsequent resignation. The first, filed on June 25, 1979, in Case 31-CA-9129, 22 alleged as follows: From March i, 1979, to April 16, 1979, Ventura Coastal Corp. deliberately delayed recalling its laid- off employees, in order to prevent them from voting in an NLRB election, and to discourage union activity. From April 24, 1979, to May 4, 1979, Ventura Coastal Corp. discriminatorily changed Fritz Conle's job assignment, and refused to reinstate him to his former job as a forklift operator. By these ac- tions Ventura Coastal Corp. constructively dis- charged Fritz Conle. Charging Party requests that this charge be consoli- dated with Case No. 31-CA-8576 and other charges filed by Local 26, ILWU. For reasons which are not clear from the record, Conle withdrew that charge, and the Regional Director approved that withdrawal on August 8, 1979.23 On August 16, 1979, however, Conle filed a new charge in Case 31-CA-9294 which reiterated verbatim the charges which he had recently withdrawn, and which alleged, in addition, that Respondent had engaged in other unfair labor practices directed against other em- ployees. 2 4 21 The initial charge in Case 31-CA-8576 was somewhat general in contending that Conleic had been discriminated against in the presetnlement period The IL WU filed an amended charge on January 29, 1979, in the same casr which conformed to the Dore disclosures regarding Conle's June 1978 "demotion" from the shipping leadman's job, and the July 1978 failure to give Conle a vacant forklift job in the juice plant. ' Resp. Exh 13. 2: Resp E.h. 14 ZI G C. Exh. l(c) As noted above, however, the consolidated complaint which eventually issued on July 18, 1980, in both Cases 31-CA-8576 and 31-CA-9294 contained none of the al- legations pertaining to Conle which Conle had included in his charge in Case 31-CA-9294. Rather, the only aspect of 31-CA-9294 which surfaced in the complaint was the 8(a)(l) allegation in paragraph 6 alleging coer- cion of another employee by Respondent in "late March, 1979."25 In addition, the Regional Director notified the parties by letter dated January 9, 1981 (i.e., shortly before the hearing was to commence), that the "constructive dis- charge" allegation in Case 31-CA-9294 had been with- drawn by Conle with the Regional Director's approval, but that "This action does not in any way affect the complaint issued by me on July 18, 1980, on the basis of other allegations in the charge, and such complaint re- mains in full force and effect."2 6 Finally, the Regional Director notified Respondent on June 30, 1980 (i.e., shortly before issuing the instant com- plaint), that Respondent was deemed to be in compliance with the settlement agreement in Case 31-CA-7972.2 7 Analysis and Conclusions Regarding Respondent's Procedural Defenses; APA Defense The complaint did not issue for more than 1-1/2 years after a charge was filed in Case 31-CA-8576 (which, as the General Counsel concedes, is the charge which un- earthed the information on which pars. 7 and 8 of the complaint are based). From this extraordinary lapse of time,28 Respondent contends that it has been denied fun- damental due process rights to a prompt opportunity to defend itself against charges of misconduct. More specifi- cally, Respondent contends that the office of the General Counsel breached the specific mandate of the Adminis- trative Procedure Act that matters brought before an ad- ministrative agency be concluded "within a reasonable time." 2 9 The General Counsel was invited to make a matter of record any extenuating circumstances which might show that this 19-month delay, however extraordinary, was nevertheless "reasonable" within the meaning of the APA. The General Counsel offers this explanation: The Re- gional Office investigated the charge in Case 31-CA- 8576, filed December 6, 1978. By some point in January 1979, the Region determined that the charge was merito- rious, at least insofar as it concerned Conle's demotion from leadman in June 1978, and the denial to him of the transfer to a forklift job in the juice plant in July 1978. 12 That is, the allegation for which no proof was offered at the hearing and which I therefore dismissed (see fn. 2). z6 Resp. Exh. 9. 2' Resp. Exh. 6. 28 It was truly extraordinary. I take notice that the General Counsel, as a matter of published internal policy. strives to issue complaints no more than 45 days after a "merit" charge is filed 29 The Administrative Procedure Act states in pertinent part (5 U.S.C. § 555(b)) (rev. 1966) as follows: With due regard for the convenience and necessity of the parties or their representatives and within a reusonable time, each agency shall proceed to conclude a matter presented to it. [Emphasis supplied.l 296 VENTURA COASTAL CORPORATION The Region was nevertheless mindful of a potential "set- tlement bar" defense, particularly in the light of the Board's then-recent decision in Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978) (discussed below). For this reason, the question of the impact of Hollywood Roosevelt on the current charge was referred to the General Coun- sel's Division of Advice in Washington, D.C., in late January 1979. The General Counsel represents that the matter reposed in the Division of Advice until shortly before the complaint finally issued on July 18, 1980. In short, the General Counsel's only defense to the APA challenge is that there was an unusual legal ques- tion involved in determining whether or not complaint should issue in Case 31-CA-8576 and that the question took almost 19 months to be resolved within the office of the General Counsel. I have noted that this was an extraordinary delay, even for a case that required advice from the General Counsel in Washington, D.C. The General Counsel has not made a matter of record any circumstances which would explain why it took so long to decide the impact of the Board's Hollywood Roosevelt decision on whether or not a complaint should issue herein. In the absence of any such extenuating evidence, there is substantial merit to Respondent's claim that the APA mandate that an agency conclude matters brought before it within a "rea- sonable time" was disobeyed by the delays of the Gener- al Counsel in the exercise of his responsibilities under Section 3(d) of the Act. I do not agree with Respondent's contention, howev- er, that the General Counsel's violation of the "reason- able time" strictures of the APA requires dismissal of the complaint. In an analogous context, the Supreme Court rejected such an argument in Rutter-Rex,30 observing that ". . . the Board is not required to place the conse- quences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing em- ployers." (Id. at 265.) Neither has Respondent demon- strated that it was substantially prejudiced in its ability to defend itself against the substantive complaint allegations by virtue of the General Counsel's delay. 31 Settlement-Bar Defense A. Chronological Recapitulation Having related above in narrative form the somewhat involved background relevant to the settlement-bar issue, I set forth below a brief chronological recapitulation of the key events: "O .L.R. B. v. J. H. Rutter-Rex Manufacturing Company. Inc., 396 US. 258 (1969). aX I note further. as did the Court in Rutter-Rex, supra at 266, fn 3. that Respondent here was not without recourse under the APA had it desired to compel an earlier disposition of the question whether or not a complaint should issue in Case 31-CA-8576 Since the APA provides its own remedy for breaches of its mandate that proceedings he concluded within a "reasonable time" by permitting suits to "compel agency action .. unreasonably delayed" the extraordinary remedy of dismissal of the complaint which Respondent seeks herein swould not be appropriate 1978 May 5-Conle files unfair labor practice (ULP) charges in Case 31-CA-7972 under Section 8(a)(l) of the Act. July 10--Conle amends the above ULP charges; and although he is aware that he has been demoted from his lead job in shipping and has been denied a transfer to a forklift job in the juice plant, he does not address these actions in his amended charge. July 31--Respondent executes settlement agreement in 31-CA-7922. Conle obtains declaration from former Personnel Manager Dore on the same date which clearly supports possible ULP charge that Respondent discriminated against Conle in June and July by "demoting" him from the shipping lead job and refusing to honor his request to transfer to a vacant forklift job in the juice plant. August 3-Region 31 invites Conle to join in settle- ment in Case 31-CA-7972. August 20-Conle refuses to join in settlement on grounds unrelated to matters revealed by Dore's declaration, and does not disclose Dore's declara- tion. August 28-Regional Director approves settlement in Case 31-CA-7972 unilaterally. Conle's later appeal of Region 31's refusal to issue complaint in Case 31-CA-7972 is rejected as untimely. October 30-Conle notifies Region 31 that only an English-language notice has been posted, contrary to bilingual notices required by settlement agree- ment in Case 31-CA-7972. In the same communica- tion, Conle says that ILWU will "shortly" be filing "additional" ULP charges against Respondent and asks Region 31 to "look into" his "objections." November I (approx.)-Region 31 ignores Conle's reference to "additional" ULP charges and, instead, sends bilingual notices to Respondent for posting, thus beginning, by agreement with Respondent, the 60-day posting period required in the settlement agreement in Case 31-CA-7972. December 6-ILWU "on behalf of Fritz Conle" files charge in Case 31-CA-8576 addressing alleged presettlement discrimination against Conle (as dis- closed by Dore's July 31 declaration). 1979 January-Region 31 submits to Division of Advice the effect of Hollywood Roosevelt on the viability of the charge in Case 31-CA-8576. 1980 June 30-Region 31 notifies Respondent that it has complied with settlement agreement in Case 31- CA-7972. July-Division of Advice authorizes complaint ad- dressing presettlement discrimination against Conle. 297 DECISIONS OF NATIONAL LABOR RELATIONS B()ARD July 18-Consolidated complaint issued by Region 31. B. Conclusion For all of the reasons discussed earlier, I have con- cluded that all outstanding complaint allegations with the exception of paragraph 10(b) are inescapably grounded on alleged violations of the Act by Respondent which preceded the taking of the settlement in Case 31-CA- 8576. Because of this, those allegations are, prima facie, subject to the "general rule" in Hollywood Roosevelt, supra, that a "settlement agreement bars subsequent liti- gation of presettlement conduct alleged to constitute unfair labor practices."32 I deal now with the General Counsel's grounds for as- serting that the settlement in question is not subject to the quoted general rule, but, rather, falls within one of the enumerated exceptions thereto. I note at the threshold that the last of the quoted ex- ceptions, i.e., a specific reservation of rights to litigate other matters, is not applicable herein, for the settlement agreement contains no such reservation language. As to the exception when the presettlement violation is "unknown to the General Counsel," there is, of course, no evidence that the Regional Director did, in fact, know about additional presettlement violations when he approved the settlement agreement on August 29, 1978. But the Board qualified that exception by adding the proviso that, even when the General Counsel did not know of the additional violations, the settlement never- theless would bar subsequent litigation of any presettle- ment conduct unless it was "not readily discoverable by investigation." Here the General Counsel has the greatest difficulty. For the witness with plain knowledge of the additional alleged presettlement violations (Conle) was the same person who had filed the charges which the Regional Director had agreed to settle. It would have been a simple matter for the Regional Director or his agent to ask Conle whether Conle knew of any other potential violations which ought to be looked into before the Regional Director approved a set- tlement which, under Hollywood Roosevelt, would pre- sumptively bar subsequent complaints about alleged pre- settlement violations. I am satisfied that the "not readily discoverable by investigations" language in Hollywood Rossevelt was intended to place exactly such a burden on the office of the General Counsel at the time it was con- templating approval of settlement agreement. This view of Hollywood Roosevelt is additionally con- firmed by other language in that decision. Thus, address- ing the dissenting view that the matters at issue were not known to the General Counsel when he approved a set- tlement agreement, the majority stated (id. at fn. 5): . . . inasmuch as this conduct (which, as noted above was known to the [charging party] Operating Engineers) occurred prior to issuance of the com- plaint . . . and there is no indication that evidence as 3Z The Board enumerated the following exceptions to hiat "general rule": When prior violations were "unknown to the General Counsel. not readily discoverable by investigation, or specifically resersed from the settlement by the mutual understanding of the parties" (id at 1397) to this issue was unavailable to the Regional Director . . .we cannot agree . . . that the record establishes that the General Counsel was unaware of the addi- tional violation. [Emphasis supplied.] Accordingly, the quoted language dictates the conclu- sion that a charging party's knowledge as to presettle- ment violations may be imputed to or, perhaps may be equated with, the knowledge possessed by the the Gen- eral Counsel for purposes of application of the settle- ment-bar doctrine; and it is therefore no defense under such circumstances for the General Counsel to claim that its agents did not have actual knowledge of additional presettlement misconduct. If it were not part of the Gen- eral Counsel's burden before approving a settlement to inquire of (at least) the charging party whether it has knowledge of other potential presettlement violations, then one could reasonably ask why the Board appended the phrase "not readily discoverable by investigation" to the phrase "unknown to the General Counsel." Moreover, the Regional Director did have an indica- tion from Conle, before any "fail-safe" point had been reached in the settlement process, that there were other potential violations lurking in the background. Thus, Conle told the Region on October 30 that the ILWU would "shortly" be filing "additional" charges over Re- spondent's actions. This was done before Respondent had begun complying with the bilingual notice-posting under the settlement: and, therefore, Respondent had not taken any significant action in reliance thereon. Accord- ingly, there would have been no reason why the Region- al Director could not have withdrawn his approval of the settlement at that point. The Regional Director nev- ertheless ignored these disclosures by Conle, and pro- ceeded to implement the settlement process. The General Counsel appears to place some control- ling significance on the fact that Conle had agreed with Dore to treat Dore's disclosures as "confidential," at least until Dore had exhausted his separate action against Respondent over his own discharge. The General Coun- sel's argument is, as I grasp it, that Conle would thus have been powerless to give any hint whatsoever about additional violations to the Regional Director during the period when the Regional Director w as contemplating approval of the settlement agreement, even if the Re- gional Director had made some inquiry of him about other potential violations. The difficulty with this argument is that we shall never know what Conle would have done if the Region- al Director had made inquiry, since the question was never put to Conle. In addition. I regard the "confidentiality" issue as being somewhat contrived. As Dore admitted, he did not ask Conle to keep his July 31 disclosures confidential until after he had made those disclosures and until after Conle had prepared, and Dore had signed, a written statement containing those disclosures. Normally, in human dealings, such ex post facto requests to treat earli- er remarks as being "off the record" do not bind the lis- tener. Again, had the Regional Director put Conle to the test, Conle might have weighed all of the considerations and determined that it w as more important to ignore 298 VENTURA COASTAl CORPORAFTION Dore's belated request for confidentiality than to honor it. Certainly the public interest in timely discovery and disposition of alleged unfair labor practices would have been persuasive arguments available to the Regional Di- rector had he inquired and had Conle given any hint whatsoever that he had evidence that Respondent had committed additional violations in the presettlement period. If nothing else, even had Conle done no more than to say to the Regional Director that he had signifi- cant information about additional unfair practices, but that he could not disclose his source for the time being, the Regional Director could have been alerted to the need to include in the pending settlement agreement the type of reservation clause which Hollywood Roosevelt contemplates. Accordingly, where the General Counsel never made inquiry of Conle about other potential presettlement 'vio- lations, and where we will never know what Conle would have disclosed had an inquiry been made. I cannot conclude that the General Counsel may escape the impact of Hollywood Roosevelt based simply on his lack of knowledge which was itself based initially on his failure to make reasonable inquiry of Conle, and, later, on his failure to heed Conle's October 30 statement that charges over "additional" violations were about to be filed. Respondent further argues, with some persuasion, that even if the General Counsel is not obliged spontaneously to inquire of charging parties whether they have knowl- edge of additional presettlement violations, the charging party himself has a duty to disclose such knowledge, or face the prospect of having such violations go unreme- died by virtue of their having been merged into the set- tlement agreement. Respondent here relies on language in Jefferson Chenical Company, Inc., 200 NLRB 992 (1972), in which the Board majority made special refer- ence to the fact that the charging party had knowledge of additional violations which it chose not to disclose after a "narrow" 8(a)(5) complaint had issued and had been fully litigated. The majority thus reasoned (id. at fn. 3) that: . . . such multiple litigation of issues which should have been presented in the initial proceeding consti- tutes a waste of resources and an abuse of our proc- esses and that we should not permit it to occur. It is true that Jefferson Chemical, unlike the instant case, involved an attempt to litigate matters in a second proceeding which the Board found should have been liti- gated in an earlier proceeding. The analogy is neverthe- less valid. Here, as in Jefferson Chemical, a fundamental public policy is at stake; that is, that all matters known or reasonably knowable to the complaining parties ought to be disposed of in the same proceeding (here, the set- tlement agreement). Charged parties will not readily enter into settlements that purport to settle all prior mat- ters if the Act is administered in such a way as to permit charging parties to withhold knowledge of additional presettlement violations and to disclose them to the Gen- eral Counsel piecemeal, only after a settlement has been concluded. The General Counsel further argues that IHollywood Roosevelt should be narrowly construed and that its set- tlement-bar rule should be applied only to factual situa- tions where there is a subsequent attempt to litigate pre- settlement conduct which was "clearly encompassed" by the settlement agreement. It is at least arguable that the presettlement conduct which was under attack in Hollywood Roosevelt was closely related in character to the matter encompassed by the settlement agreement. Assuming that to be the case, and assuming further that the instant case presents presettlement conduct which is not "closely related" to the settled matters, I nevertheless disagree with the Gen- eral Counsel's interpretation of the rule in that case as being essentially confined to its facts. Rather, the text of the majority opinion seems to reflect a clear effort by the Board to create a "bright line" rule for guidance in all cases where presettlement conduct becomes the subject of a post-settlement complaint. In this regard, I have noted already that the Hollywood Roosevelt Board referred to a "general rule" in restating the settlement-bar doctrine, and further took care to list the only circumstances which would constitute excep- tions to that general rule."3 More fundamentally, the Hollywood Roosevelt majority expressly rejected essentially the same argument which the General Counsel now urges. Thus, the Board reject- ed the dissenting argument that a matter which "was not within the contemplation of the settlement agreement" was not barred from subsequent litigation. Rather, said the majority, the case relied on by the dissent "stands for the proposition that a settlement agreement disposes of all issues " involving presettlement conduct unless [listing the above-quoted "exceptions"]. 4 Accordingly, the Board could not have made more plain its rejection of the argument that settlement agree- ments bar only subsequent litigation of matters "within the contemplation of the settlement agreement" (or, using the General Counsel's alternative formulation, mat- ters "clearly encompassed" by the settlement). Rather, a settlement disposes of all presettlement issues, unless they meet one of the specific exceptions. Moreover, even assuming, arguendo, that Hollywood Roosevelt did not address the viability for subsequent liti- gation of presettlement matters which were of a different character or quality from the settlement matters, I would not accept the General Counsel's position that the al- leged presettlement discrimination against Conle was sig- :" See L[aninite Pla/utiR Mfg. Corp., 238 NLRB 1234 (1978), where the Board repeated verbatimn the Hollywood Roosevelt rule, and its specific ex- ceptions Compare the Board's related decision in Laminite Plastics Mfg Corp., 238 NL.RB 888 (1978). in which the Board did not apply the Holly- K'*eid Rservelh rule to a case, unlike here, where the conduct which was subjecl to litigation did not occur until after the matters which were set- tied had been investigated and had been made the subject of a separate complaint, and therefore were not discoverable before the issuance of the complaint which was the subjectl of the settlement. Here. as outlined ahore. the alleged presettlement discriminatlion against Conle occurred during the period his earlier charge was being investigated and well before the settlement agreement had been approved or implemented 1' 231 NI RHB at 13I7. cnpha.is, ,upplied 29q DECISIONS OF NATIONAL LABOR RELATIONS BOARD nificantly different from the alleged unfair labor practices that were settled in Case 31-CA-7972. The charge which was settled addressed Respondent's alleged at- tempts by various devices to interfere with, restrain, or coerce employees in the exercise of their right to support the ILWU in its then-current organizing campaign. The alleged presettlement discrimination against Conle is con- tended to be of the same character, i.e., that Conle was discriminated against because he was the principal orga- nizer in that union campaign and to inhibit his ability to organize other employees. Certainly, if Conle had dis- closed to the General Counsel in connection with the processing of his charge in Case 31-CA-7972 that Re- spondent was also discriminating against him personally because of his role as the ILWU's in-plant organizer, a complaint could have issued as to that latter discrimina- tion action even if a charge had never been filed which specifically called it into question. The Board and the courts have frequently held that a charge is a mere "triggering mechanism" for an investi- gation by the Board's General Counsel, and need not en- compass every potential violation which may be un- earthed by the investigation. E.g., N.L.R.B. v. Fant Mill- ing Company, 360 U.S. 301 (1959), involving, as herein, a complaint based on matters which arose after the filing of a charge, but discovery of which was made during the investigation of the charge.35 Moreover, this general rule has been interpreted liber- ally to permit a complaint over alleged unfair labor prac- tices which would otherwise be time-barred by Section 10(b) of the Act when they were unearthed during the investigation of a timely charge, so long as they are "re- lated" to the matters which are subject to a timely charge. Id. at 306-308. This "relatedness" limitation is itself liberally construed to permit amendment into a complaint of an otherwise time-barred unfair labor prac- tice arising under a different section of the Act than the matter which was the subject of the timely charge. See, e.g., North Country Motors. Ltd., 133 NLRB 1479 (1961) (amendment to include otherwise time-barred 8(a)(3) dis- crimination allegations where the timely underlying charge alleged violations of Sec. 8(a)(1) and (5)). Accordingly, the General Counsel's suggestion that the alleged presettlement discrimination against Conle was not "related" to the matters which were settled does not withstand scrutiny. They would clearly be treated as sufficiently "related" to survive a Section 10(b) attack so long as there had been a timely charge alleging that Re- spondent had violated Section 8(a)(1) by other conduct which unlawfully interfered with employees' rights during an organizational campaign. I turn finally to what I deem to be the General Coun- sel's least substantial argument. The General Counsel contends that even if Conle had disclosed Dore's revela- tions to the General Counsel before the settlement agree- ment was consummated, the General Counsel would have been powerless to pursue the matter because of a self-imposed restriction on seeking out persons, such as Dore, who are "former supervisors" of a charged party, :'5 See also, generally, Exber. Inc. d/b/a El Correz Hotel ' N.L.R.B., 390 F.2d 127 (91h Cir 1968) without first notifying the charged party's attorney and giving him an opportunity to be present during any inter- view of the former supervisor. This asserted restriction, argues the General Counsel, establishes that this case should be treated as falling within the Hollywood Roose- velt exception for matters which are not "readily discov- erable by investigation." The alleged internal restriction relied on by the Gener- al Counsel is in the General Counsel's Casehandling Manual3 6 at section 10056.5, captioned "Interviews of Respondent's Representatives." I set forth below the per- tinent portions of the text of that section, with italics for emphasis on significant passages: Where respondent is represented by counsel or other representative and cooperation is being ex- tended to the Region in connection with its investi- gation of unfair labor practice charges, the charged party's counsel or representative is to be contacted and afforded an opportunity to be present during the interview of any supervisor or agent whose statements or actions would bind a respondent. This policy will normally apply in circumstances where: (a) the charged party or the latter's counsel or representa- tive is cooperating in the Region's investigation; (b) counsel or representative makes the individual to be interviewed available with reasonable promptness so as not to delay the investigation; and (c) during the interview counsel or representative does not inter- fere with, hamper, or impede the Board agent's in- vestigation. In cases involving individuals whose su- pervisory status is unknown, this policy would not be applicable. This policy does not preclude the Board agent from receiving information from a supervisor or agent of the charged party or former supervisor or agent of the charged party where the individual comes forward voluntarily, and where it is specifically indicated that the individual does not wish to have the charged party's counsel or representative present. Similarly, in cases involving individuals whose su- pervisory status is unknown, this policy would not be applicable. In those cases in which the witness does not object to the presence of counsel, the ap- pointment for an interview should be made and counsel advised of the date, time, and place of the interview. The reader will note that the quoted provisions reflect a recognition of the right of a party to have counsel present when he or any supervisor or agent of his with power to "bind" him is being interviewed by an agent of the General Counsel. The only express reference to "former supervisor" is in the passage which is introduced by the instruction that there are circumstances in which counsel need not be given an opportunity to be present. The obvious intention of this section of the Manual is to ensure that a party's right to counsel is preserved when- ever an agent with power to bind him is being inter- viewed. 36 NLRB Internal Instructions and Guidelines (ULP) 300 VENTURA COASTAL CORPORATION The back-door reference to "former supervisor" cannot readily be taken as an interpretation by the Gen- eral Counsel that former supervisors have any power to "bind" or make admissions on behalf of their former principals. That interpretation would be plainly at odds with the settled view of the law of hearsay, as reflected in the Federal Rules of Evidence, that, in order to quali- fy as an admission of a party-opponent, the declarant must be "an agent or servant," speaking about "a matter within the scope of his agency or employment [and the putative admission must be] made during the existence of the [agency/employment] relationship." (Emphasis sup- plied.) 3 7 Accordingly, certain vague suggestions in the General Counsel's Casehandling Manual notwithstanding, nothing in law precluded the General Counsel from approaching Dore and securing his statement without the knowledge or presence of Respondent's counsel at any time after Dore had terminated his employment with Respondent. His statements at that time would not bind Respondent as admissions of a party. I therefore find unpersuasive the General Counsel's claim that Dore's information would not have been "readily discoverable by investiga- tion." In summary, I conclude that, inasmuch as the settle- ment agreement contained no reservation language, and inasmuch as the alleged discrimination against Conle in June-July 1978 was readily discoverable by investigation, the Board's decision in Hollywood Roosevelt requires the conclusion that the settlement agreement disposed of all presettlement conduct currently under challenge herein. For the reasons noted above, this requires dismissal of not only the alleged discrimination against Conle in June-July 1978 covered by paragraphs 7 and 8 of the complaint, but also the October 1978 layoff of Conle dealt with in paragraph 10(a) of the complaint, as amend- ed, which itself is inextricably linked to alleged discrimi- nation which preceded the settlement agreement. In ad- dition, while paragraph 10(a) of the complaint, as amend- ed, does not address actions by Respondent against Conle upon his return from layoff in April 1979, it is evi- dent that even if it were so construed, it is similarly in the nature of an allegation of "continuing" discrimina- tion, likewise inextricably linked to alleged discriminato- ry conduct which is barred by the settlement agreement. That arguable aspect of paragraph 10(a) must likewise be dismissed. Section 10(b) Defense Paragraph 10(b) of the complaint, as amended at hear- ing, purports to challenge "independent" discrimination against Conle upon his return from layoff in April 1979 by the assignment to him of a "less desirable position" than the forklift job which Conle occupied before his layoff. As I have construed it, this allegation, while it may require buttressing by reference to certain presettle- ment "background" evidence of Respondent's hostility towards Conle because of his organizing activities, is not so linked to settlement-barred alleged discrimination counts as to require dismissal on the same grounds. 37 Fed R. Evid. Rule 801. 28 U.SC A. § 801 (d)(2)(D). Rather, it alleges, in effect, that Respondent swould have recalled Conle to a more desirable position had it not been for his earlier organizing activities. Respondent correctly points out, how'ever, that this al- legation appeared in the complaint only by the device of a hearing amendment made well after the 6-month limita- tions period, prescribed in Section 10(b) of the Act, had elapsed. I further conclude, for the reasons recounted below, that the only charges which were timely filed dealing with alleged "independent" discrimination against Conle upon his return from layoff were with- drawn as to those contentions. I have previously adverted to the "relation-back" doc- trine by which hearing amendments to include otherwise time-barred allegations may nevertheless survive a Sec- tion 10(b) attack where they are sufficiently related to the matters which were the subjects of a timely charge.3s But that doctrine does not apply where the matters encompassed by a hearing amendment were spe- cifically alleged in a charge and were later dismissed by the General Counsel or were withdrawn by the charging party. Koppers Company, Inc., Forest Products Division, 163 NLRB 516 (1967); California Pacific Signs, Inc., 233 NLRB 450, 451 (1977); see also Kennicott Bros. Comnpany, 256 NLRB 11 (1981), and cases cited therein.3 9 After a careful study of the record, I am satisfied for the following reasons that the alleged independent dis- crimination against Conle upon his return from layoff in April 1979 was, sub silentio, dismissed by the issuance of the July 18, 1980, complaint which contained no corre- sponding allegation, and, in any event, that it was ex- pressly withdrawn by Conle. It will be recalled that Conle initially filed a charge on June 25, 1979, in Case 31-CA-9129 which alleged, inter alia, that Respondent had, from the point of his recall until he quit about 10 days later, ". . . discriminatorily changed Fritz Conle's job assignment and refused to re- instate him to his former job as a forklift operator. By these actions [Respondent] constructively discharged Fritz Conle." (Emphasis supplied.) Conle withdrew those charges shortly thereafter, only to refile the quoted charges verbatim on August 16, 1979. in Case 31-CA- 9294, together with independent charges of violations pertaining to other employees. The record reveals in some detail what happened to the various allegations in that charge. First, the Regional Office formally dismissed those portions of Case 31-CA- 9294 which had claimed that Respondent had delayed its recall of employees on layoff in order to preclude them from voting in a then-scheduled representation election, and had independently discriminated against employee John Lambiase.4 0 Moreover, the record contains a letter a8 Fant Milling. vupra, Exber. Inc.. supra: Vorth Countryv Motors. supra. 39 The Board in Kenniwott. supra, noted specifically the evolution of an "equitable consideration" exception to the general rule that a withdrawn or dismissed charge may not be revived outside the 10(hb period. No such equitable basis is present or argued by the General Counsel herein Neither was the hearing amendment to include paragraph l{0h) based on newly discovered evidence Cf California Pacific Signi. iupra 40 Resp Exh 7 301 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the General Counsel's Office of Appeals dated March 27, 1980, dismissing, for the reasons noted therein, Conle's appeal from the Region's dismissal of those por- tions of that charge. 4 That same letter contains what is obviously a reference to that portion of Conle's charge which alleged that Re- spondent's post-recall discrimination against him amount- ed to a "constructive discharge." Thus, id., page 2, the letter concludes with this language: ... noting that your allegations concerning your employment status with the Employer were not dis- missed by the Regional Director, further proceed- ings concerning those issues before this office were deemed unwarranted. From the emphasized text, it is evident that Conle's "constructive discharge" allegation (and the discrimina- tion elements which were expressly linked to it) were at that time still under consideration by the General Coun- sel at the regional level.42 When the consolidated complaint finally issued on July 18, 1980, however, neither the constructive dis- charge allegations nor any express allegation of inde- pendent discrimination against Conle after his April 1979 recall were included in it. The only feature of the charge in Case 31-CA-9294 which survived was the 8(a)(1) alle- gation dealing with Respondent's actions towards an- other employee, as described in the now-dismissed para- graph 6. It is therefore apparent that the issuance of the complaint without any constructive discharge or related allegations pertaining to Conle's treatment upon recall amounted to a sub silentio dismissal of those portions of Conle's charge in Case 31-CA-9294. Finally, the Regional Director notified the parties shortly before the hearing commenced, on January 9, 1981, that the "constructive discharge" allegation had been withdrawn by Conle, with the Regional Director's approval. 4 3 From this, if not from the other factors cited above, the conclusion is inescapable that all features of Conle's charge pertaining to post-recall treatment of him had been removed from consideration. 4 4 I am therefore satisfied that the allegation that Conle was independently discriminated against after his April 1979 recall was expressly considered and rejected by 41 Resp. Exh. 8 42 See also the last sentence of the second paragraph of Resp. Exh 7 stating that the "Section 8(a)(3) and (11" allegations would be the "sub- ject of further proceedings." .4 Resp. Exh. 9, previously cited and discussed. 44 Although counsel for the General Counsel's brief does not address Respondent's 10(b) defense to complaint par. 10(b), I anticipate a poten- tial argument that her letter to Respondent shortly before the hearing (G.C. Exh. 3) would show, notlsithstanding the foregoing contrary indi- cations, that Conle's post-recall treatment was intended to be part of the complaint, as originall) drafted. For the reasons, set forth in the section captioned "Outstanding Complaint Allegations," however, it is clear that that letter only purported to give Respondent notice that its post-recall treatment of Conle was vieswed by the General Counsel as a "continu- ation" of the discrimination against Conle in June-July 1978 as set forth in pars 7 and 8 of the complaint. Indeed, that letter further supports the conclusion reached in this section that the complaint was never intended to include any independent allegation of discrimination against Conle during the brief period after he "uas recalled in 1979 and before he quit. Region 31 before the issuance of the complaint and, in any event, was expressly withdrawn by Conle before the hearing. The General Counsel's hearing amendment to include paragraph 10(b) was therefore clearly an attempt to reopen an earlier final disposition of the same matter. Because the matter had been considered, then dismissed and/or withdrawn, and because the General Counsel's hearing amendment occurred outside the 10(b) limita- tions period, the litigation of the merits of complaint paragraph 10(b) is barred by Section 10(b) of the Act. Alternative Treatment of the Merits I am mindful that these threshold conclusions on Re- spondent's procedural defenses are subject to possible re- versal by a reviewing body; and that, if that were to happen, further delays would be occasioned by the need for a remand of all or part of this case for consideration on its merit by the trier of fact. This consideration augurs against transferring this case to the Board without alternative backstop findings and credibility resolutions bearing on the substantive merits. Balanced against this consideration, however, is the certainty of further delay should I proceed to a full-blown alternative treatment of the merits of the underlying complaint allegations. In an attempt to strike a balance between these con- flicting considerations, I attach hereto, labeled "Appen- dix," a summary of findings of fact, including credibility resolutions, together with a summary of my conclusions of the merits of the significant complaint allegations. CONCI USIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse, Processing and Distribution Workers Union, Local 26, International Longshoremen's & Ware- housemen's Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. The allegations of complaint paragraphs 7, 8, and 10(a), as amended, are barred from litigation by virtue of the settlement agreement in Case 31-CA-8576 with which Respondent has complied, and those allegations must therefore be dismissed. 4. The allegations of complaint paragraph 10(b), as amended, are barred from litigation by virtue of Section 10(b) of the Act and must therefore be dismissed. Upon the foregoing findings and upon the entire record, I thus issue this recommended: ORDER 45 The complaint is hereby dismissed in its entirety. 4s In the event no exceptions are filed as prosided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. he adopted b) the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 302 VENTURA COASTAL CORPORATION APPENDIX Summary of Findings, Including Credibility Resolutions, and Main Conclusions as to the Merits of the Complaint Credibility Summary There are issues of credibility at every stage of this case. The most important is an analysis of the merits of the paragraph 7 demotion of Conle from his lead posi- tion in the shipping department are between Conle and Ballestero (as to whether Ballestero clearly and without reservation told Conle that he intended to install Conle as shipping department leadman); and between Dore and Management Representatives Ballestero and Ward (as to whether Dore played any role whatsoever in the deci- sion to give the shipping department lead position to someone else). I watched Conle closely throughout the course of his extensive testimony and formed the overall impression that he was a careful and truthful witness, with an im- pressive memory for detail. While he was clearly legally sophisticated, playing an active role as his own repre- sentative, and while he was necessarily "interested" in the outcome, nothing in the extensive cross-examination of him by Respondent's counsel, nor in Respondent's presentation as a whole, raised any strong suspicion that Conle was consciously shading the truth on any material points of fact. Ballestero also exhibited aspects of sincerity and some care in his testimony. In addition, however, his manner suggested to me that he fully understood the nature and details of Respondent's defense and that he was thus doing his best to shape his testimony to conform to the defense line, especially as to incidents between Conle and himself. I therefore credit Conle over Ballestero as to what was said between them at various critical stages. Former Personnel Manager Dore was not impressive. He repeatedly offered tailored, edited, conclusionary, and internally inconsistent accounts of key incidents in which he claimed to have been involved. He clearly re- vealed a hostility towards Respondent's management and displayed great relish in having the opportunity to testify against Respondent. I view his testimony with a great deal of mistrust and believe it to be only marginally reli- able. Neither did I find plausible, or demeanorally impres- sive, the testimony of Managers Ward and Ballestero in their own denials of and/or contradictory accounts of certain key incidents involving them and Dore. I have concluded that they were only partially truthful in deny- ing or contradicting Dore's testimony. Discussion and Findings Ignoring Dore's testimony for the moment, the princi- pal features supporting the General Counsel's prima facie case as to the paragraph 7 allegation that Conle was dis- criminatorily demoted from the lead position in shipping are as follows: 1. Conle's credited testimony that when he was first hired by Ballestero the latter told Conle that his ability to speak English would give him "a fairly good chance of moving up." 2. The undisputed fact that Conle was immediately given a forklift job, whereas, normally, new hires are given more menial jobs which do not require record- keeping and paperwork duties (which the forklift job did require), nor an ability to speak in English with the largely English-speaking truckdrivers with whom the forklift operators interacted. 3. Conle's credited and undisputed testimony that, only a week after his hire in the shipping department, he was transferred to work as the assistant to the leadman in the receiving department, Orozco, where he thereafter spent several months familiarizing himself with departmental lead duties and regularly filled in for Orozco during Orozco's absences, including during the evenings after Orozco left work. In addition, it is undisputed that Conle had previously filled in as shipping department leadman for 3 weeks. 4. Conle's credited testimony that on June 3, 1978, Ballestero asked him whether he planned to "stay on" with Respondent on a "permanent basis," and when Conle replied that he did, Ballestero told him that "that was good, because [Ballestero] wanted to promote [Conle] to being in charge of shipping because Manuel Alvarado [the shipping lead incumbent] was also going to be promoted to foreman [in the washing department.]" Crediting Conle, Ballestero also said that he knew that Conle was having "some problems with the main office,"4 6 but Conle interrupted to say that that "doesn't have anything to do with the job," whereupon Ballestero agreed, saying, ". . . that had nothing to do with the work and that [Ballestero] wanted to give [Conle] that promotion." 5. Conle's undenied and credited testimony that Manuel Alvarado (a packing foreman) told him on June 5 that Conle "would now be in charge of shipping, that Manuel Alvarado would be around to answer questions, but that [Conle] would be in charge and that Richard Sapien would be [Conle's] helper." 6. Conle's testimony that, for the following 2 weeks, he performed the shipping lead duties, directing and training Sapien, occasionally driving the forklift, but also performing inventory and tallying of orders, and dealing with the outside truckdrivers, all as Alvarado had previ- ously performed those lead duties. 7. The fact, admitted by Ward, who had some nominal role in confirming Ballestero's lead appointments, that he went along with Ballestero's recommendations "about a hundred percent of the time." 8. The fact, admitted by all parties, that the person who eventually was installed as shipping leadman on or about June 19, Saul Rosales, spoke only broken English and thus had a great deal of difficulty in communicating with the outside truckdrivers and English-speaking office personnel. In addition. when Rosales took over as ship- 46 A likely reference to the fact, as testified to by Dore and acknowl- edged hy Ballestero. ihat Dore regarded Conte as a "lhorn in his side" because of his prounion outspokenness at the April 27 "action meeting" and had so told Hallestero on or about April 28r. with a request that Bal. leslero not send Conle to ain molec ailion n'il-tring 303 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ping leadman and Conle was "demoted" to forklift oper- ation and serving as Rosales' assistant, Conle was still re- quired to do most of the dealing with the outside drivers. Respondent's defense to the paragraph 7 allegation relies principally on the testimony of Ballestero and Ward to the following effect: Conle was merely one of several apparently qualified candidates for the shipping lead job. Saul Rosales was another such qualified candi- date, and Rosales had more seniority than Conle. Dore did not become involved in any way with the decision as to whom to promote to the shippng lead position. Rather, following a policy of using seniority as the con- trolling factor when candidates were otherwise deemed "qualified," Rosales was selected on that basis alone. Bal- lestero never recommended Conle for the job, nor did he ever tell Conle that he intended to do so. Respondent explains away the fact that Conle had al- ready begun to serve as shipping department leadman by testimony of Ballestero to the following effect: Rosales had been absent from work on bereavement leave since June 6. Rosales did not return until some unspecified point thereafter. In the meantime, Conle was merely as- signed to the lead position in an "acting" capacity until Rosales could be asked about his interest in the position. Upon Rosales' return Ballestero asked him if he wanted the job, and when Rosales said that he did, Ballestero conferred with Ward and determined to give Rosales the job because he was senior to Conle. Ballestero then told Conle of his decision, citing Rosales' seniority as the reason.47 Because I have credited Conle over Ballestero on testi- monial disputes about key exchanges between them, I ignore that portion of Respondent's defense which relies on crediting Ballestero's version of those events. Rather, from the credited record, including many undisputed facts outlined earlier, I find Respondent's defense to be wanting in a number of respects. First, contrary to Re- spondent's position, I find that Ballestero intended to give Conle the leadman's job, and, pursuant to that inten- tion. Conle was installed without reservation as shipping leadman on June 5.4 8 Because, as Respondent admits, Rosales did not enter bereavement leave until June 649 Ballestero's explanation for not being able to make earli- er contact with him about his interest in the job does not withstand scrutiny. 4? Conic admlit, that Uallestero referred to Rosales' seniority when Itallestero told (Conic that Rosales would be installed as tile shipping lea;dman anild that Conic would be Rosales' assistant " Respolndent argues that its own records impeach Conle's account of Ibc tlilming of hi ivt italtlation as leadman Specifically, Respondent points to a personnel re,.ord purpoirting to show that the appointment of Manuel Aliarado (the former shipping leadman) to the position of washer fore- malt did not become "effective" until June 12. This record purports only to rellect the "effective date" of Alvarado's promotional wage rate chanlge. I is not truly reliable as an indicator of where Alvarado was ac- tually v~orking il the period before June 12. 1 credit Conle's first-hand tostallon., that Alsaratdlo had already gone to the washer departmnen to beginl a "ti-aine" stint as of June 5 and that Alvarado had nit continuing function in the shipping department after that date. Similarly, the fact that Conlc did not receive a pay increase during the period Julne 5-17 is explainabile hby reference to Respondent's practice of treating itrcumbents as "traincos" fr Ihe first 2 weeks of their occupaicy of ta nvA, position. 4" Rosales' daughter wa s aounded that day, as the parties stipulated, iid died ? dai, lat.l On those facts, the decision to give the lead job to Ro- sales was based on an afterthought, and was not part of Ballestero's intention when Conle was installed in the po- sition on June 5. Even without reference to Dore's testi- mony, the findings above make out a prima facie case that Conle's known role as the ILWU's principal in- house organizer was a motivating factor in the decision to give Rosales the job.50 Moreover, from the strained and implausible explana- tion for giving the leadman's job to Rosales, I would infer that Respondent's purported motivation was entire- ly a pretext. It is difficult to accept Respondent's expla- nation that Rosales' seniority outweighed Conle's demon- strated suitability for the job. Conle had been progres- sively trained to perform the lead duties and was fluent in English and Spanish. The record does not establish that Rosales was even remotely comparable to Conle in terms of background training, experience, and necessary skills, including the ability to speak English. Neither does the record establish, except for the highly general testi- mony of Ballestero and Ward, that seniority was more important in the selection for lead jobs than consider- ations of qualifications. For similar reasons, even if this be deemed a "mixed motive" case as the Board has used the term in Wright Line, supra, Respondent did not meet its burden of show- ing that Rosales would have gotten the job even absent Conle's union organizing activities. I therefore do not find it necessary to determine whether Dore was entirely truthful in his testimony that he specifically instructed Ballestero not to give Conle the lead job because of Conle's prounion activities. I would thus conclude that Conle was discriminatorily demoted from his leadman's job in the shipping depart- ment on June 19, in violation of Section 8(a)(3) and (1) of the Act. He is therefore entitled to reinstatement to that position, with backpay, in accordance with conven- tional remedial principles. It is not necessary to determine whether Conle would have survived the October 1978 layoff had he been con- tinued in his lead job. The record does not conclusively establish that leadmen were immune from layoffs by virtue of their positions. Conic testified without contra- diction that leadmen were not laid off in the April and October 1978 layoffs. Apart from the fact that Conle was not shown to have first-hand knowledge of that fact (being himself away from the plant during those layoff periods), it is not clear whether they survived the layoff (if they did) because of their status or because of their relative seniority.5 t In any case, I regard this as essen- tially a backpay question which could be dealt with at the compliance stage; it being sufficient to have shown that Conle suffered unlawful discrimination by his demo- tion on June 19, 1978. For this reason, I do not address the arguably superfluous allegation in complaint para- graph 10(a) that Conle's October 1978 layoff was "a result" of the discrimination visited upon him in June 1978. s' Wright Line. a I)ivoit i i/ HrighI Lle, Inc. 251 NL RB 10)8 (19R0) 51 The record establishes that snio lrit, dois c llntr-ol llseIclion for layoff-at least in certain general :lhabor classlificatiis 304 VENTURA COASTAL CORPORATION Neither is it necessary, in view of the foregoing, to de- termine whether Conle was additionally discriminated against in connection with the selection of someone else to fill the forklift vacancy in the juice plant in July 1978 (the subject of complaint paragraph 8). My assessment of the record here causes me to conclude that that allega- tion may be sustained only if Dore were credited as to his claim that he specifically instructed that Conle not be given the job. Apart from Dore's testimony, Respond- ent's undisputed evidence raised plausible grounds for concluding that there was already a qualified applicant for that position in the juice plant, and it is therefore by no means clear that Conle would have been given that job, but for Dore's alleged intervention. Since it is ex- tremely difficult to sort out when Dore was simply fan- tasizing about or embellishing on his role in matters af- fecting Conle, I would not rest on his testimony in find- ing that Respondent violated the Act as alleged in com- plaint paragraph 8. Similarly, in view of my conclusion above that Conle was unlawfully discriminated against by his demotion from the shipping leadman's job, it is unnecessary to de- termine the merits of the "independent" allegation in complaint paragraph 10(b) that Conle would have been given a more desirable position upon his return from layoff in April 1979, but for his earlier union activities. Were I to determine that independent question on the merits, and without regard to considerations of where he would have been placed absent the prior discrimination against him, I would find that the General Counsel did not establish that there were other, more desirable vacant jobs available to Conle at that time, or that other, less senior, employees had been recalled before Conle to fill such jobs. Rather, the record undisputedly shows, at least as to forklift positions in the Montalvo packing house, that all incumbents in those positions when Conle was recalled were senior to Conle. Respondent further plausibly argues that it was obliged to seek out Conle for the first vacancy in any job which he could perform as soon as more senior employees had been recalled from that layoff and that its failure to have done so would have raised an arguable inference of discrimination against him. In summary, I would conclude that Respondent's dis- crimination against Conle in demoting him from the ship- ping department leadman's job is the only aspect of the complaint which would need to be addressed and reme- died if that matter were not barred under Hollywood Roosevelt by the settlement agreement in Case 31-CA- 7972. 305