Sdc Investment, Inc.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD SDC Investment, Inc. and Butchers' Union Local 498, United Food and Commercial Workers International Union, AFL-CIO. Cases 20-CA- 19782 and 20-RC-15319 25 February 1986 ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT BY MEMBERS JOHANSEN, BABSON, AND STEPHENS Upon a,charge filed by Butchers' Union Local 498, United Food and Commercial Workers Inter- national Union, AFL-CIO-CLC (the Union), on 17 July 1985, the General Counsel of the National Labor Relations Board issued a complaint on 30 August 1985 against SDC Investment, Inc. (SDC), the Respondent, alleging that it has violated Sec- tion 8(a)(1) of the National Labor Relations Act by various acts and conduct. The complaint alleges in paragraph 6 that about 10 April 1985, SDC, by the use of signs posted at its facility, threatened its employees with plant clo- sure and loss of pay, jobs, and benefits if they voted for the Union and that about 10 and 11 April 1985, SDC President Breed and Assistant Quality Control Manager Sanchez threatened employees with plant closure and loss of benefits if the em- ployees voted for the Union. The complaint alleges in paragraph 7 that on an unknown date before 12 April 1985, SDC Supervisor Visserman promised employees raises if the Union lost the election and that on an unknown date after 12 April 1985, SDC Supervisor Visserman told employees that SDC had withheld wage increases because of the union election.' On 5 September 1985, SDC filed an answer denying the alleged violations of the Act. On 23 September 1985 the Regional Director issued an order consolidating Case 20-CA-19782 with Case 20-RC-15319. On 11 October 1985 the Union filed a Motion for Summary Judgment, with exhibits attached, and on 21 October 1985 SDC filed an opposition to the motion. On 14 November 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On 18 November 1985 the Union filed a response to SDC's opposition. On 21 No- vember 1985 the General Counsel filed a Motion for Partial Summary Judgment, with exhibits at- tached, and a memorandum in support of the motion. On 13 December 1985 SDC filed a re- sponse to the show cause order and an opposition 1 An additional allegation that SDC, by means of a film, threatened plant closure if the employees voted for a union, was withdrawn in an amendment made to the complaint on 18 November 1985. to the General Counsel's Motion for Partial Sum- mary Judgment. On 13 January 1986 the General Counsel filed an Amended Motion for Partial Sum- mary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motions for Summary Judgment The basis for the motions of the Union and the General Counsel is an unfair labor practice charge filed by SDC's attorney. The General Counsel also relies on certain communications between SDC's attorney and the Regional Office in investigating this charge. The record shows that on 18 July 1985 SDC's attorney filed a charge in Case 20-CA- 19784 alleging that SDC had violated Section 8(a)(1) of the Act in various respects. Accompany- ing this unusual charge was a letter from SDC's at- torney explaining that there was a currently pend- ing election objections case, Case 20-RC-15319, in- volving SDC and that the objections in that case were identical to the unfair labor practice charge he was filing. The attorney's letter contended that a hearing officer in an election objections case lacks authority to rule on matters which, if proven, would constitute violations of Section 8(axl) of the Act. The letter further stated that the charge was being filed in order to allow the Board an opportu- nity to resolve a purported conflict among the Re- gions about the General Counsel's authority in unfair labor practice cases and that of a hearing of- ficer in a representation case. In two subsequent letters to the Regional Office, SDC's attorney indi- cated that the Region could rely on the informa- tion obtained in the representation case as the basis of the unfair labor practice charge. In its Motion for Summary Judgment, the Union contends that the charge filed by SDC "tracks" all of the allegations of the complaint in the present case. The Union further notes that, in the course of filing the charge, SDC's attorney signed the state- ment at the bottom of the charge form which reads: "I declare that I have read the above charge and that the statements are true to the best of my knowledge and belief." The Union, therefore, con- tends that the charge filed by SDC's attorney must be construed as an admission that SDC engaged in the conduct alleged in the charge, which is the same conduct that is alleged in the complaint in the present case. The General Counsel's Amended Motion for Partial Summary Judgment is similar to that of the Union, but it contends that SDC's charge consti- tutes an admission as to the allegations of para- graph 6, but not paragraph 7, of the complaint. 278 NLRB No. 97 SDC INVESTMENT The General Counsel notes that SDC, through its attorney, not only filed the charge against itself but also, in support of the charge, authorized the Gen- eral Counsel to rely on evidence gathered during investigation of the related election objections case. The General Counsel therefore contends that there are no factual issues warranting a hearing and that summary judgment must be granted as to the alle- gations of paragraph 6 of the complaint. We do not agree. The letter accompanying the charge filed by SDC's attorney makes it clear that the purpose of filing the charge was to present the Board with an issue concerning the authority of hearing officers to rule on certain matters in elec- tion objection cases. Regardless of the wisdom of filing a charge against his own client for this pur- pose, it 'is clear that SDC's attorney was not prompted to file the charge by a belief that SDC actually had committed the conduct alleged in the charge. To the contrary, it is apparent from the letter accompanying the charge and from SDC's answer in the present case, in which it denies com- mitting the alleged unfair labor practices, that SDC had no intention of admitting that it had engaged in any unlawful conduct and that it maintained that it had not engaged in any unlawful conduct. More- over, it is clear from the circumstances of the case and from the -attorney's letter that the charge was filed as a procedural device in order to present a particular legal issue to the Board and that the statements contained in the charge were not reflec- tive of a belief by SDC or its attorney that SDC had actually committed the alleged violations. Under, such circumstances, we are reluctant to grant motions for summary judgment. The state- ments constituting the purported admissions do not reflect the party's belief that they are true state- ments, but rather, were made for a different pur- 695 pose.2 Accordingly, we conclude in this case that issues of fact have been raised with respect to the allegations of the complaint that can best be re- solved by an administrative law judge. Having stated the foregoing, we feel compelled to state our strong disapproval of the procedural machinations resorted to by SDC's counsel in this matter. Quite apart from the questionable legal premise which evidently prompted this legal folde- rol, the substantial resources of the parties and the Board which have been expended to untangle the disarray are a matter of great concern. The Board is not without authority to deal with such instances of aggravated misconduct and, if it recurs, is fully prepared to do so.3 IT IS ORDERED that the Union's Motion for Sum- mary Judgment and the General Counsel's Amend- ed Motion for Partial Summary Judgment are denied. IT IS FURTHER ORDERED that the above-entitled proceeding be remanded to the Regional Director for Region 20 for further appropriate action. 2 The Board's decision in Ace Typographers, 252 NLRB 412 (1980), relied on by the General Counsel, does not compel a contrary result. In that case two employers, charged with violating Sec. 8(a)(5) of the Act, denied in their answer a complaint allegation that they had refused to recognize and bargain with the union "since on or about April 11, 1980." This formal denial did not prevent the Board from granting the General Counsel's motion for summary judgment, because appended to the motion was correspondence between the employers and the union that revealed that the employers had refused to recognize and bargain with the union since 11 April 1980. In granting the summary judgment motion, the Board noted that the employers had not disputed the authenticity of the appended letters Thus, the truth of the facts alleged in the complaint was not in doubt. By contrast, in the present case, as noted above, the statements contained in the charge filed by SDC's attorney do not reflect a genuine belief by SDC or its attorney that such statements were true. 8 Although it is SDC's attorney who engaged in questionable conduct, SDC, in its opposition to the Union's Motion for Summary Judgment, contends that the Union's filing of its summary judgment motion was so improper that sanctions, including payments of SDC's expenses and attor- ney's fees, should be imposed on the Union and its attorneys We deny SDC's request as it is wholly without merit.