Fdl Foods, Inc.

622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD FDL Foods, Inc. and Local 1218, United Food and Commercial Workers, AFL-CIO, CLC. Case 33-CA-7835 31 August 1987 ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 5 November 1986 the Charging Party filed an unfair labor practice charge alleging that the Respondent violated Section 8(a)(1) and (3) of the Act by discriminating against employees who par- ticipated in a strike by (1) failing to recall employ- ees whom it alleges have been permanently re- placed when vacancies have arisen; (2) failing to allow recalled employees to return to their previ- ous jobs; (3) assigning recalled employees to oner- ous, less desirable, most junior jobs; (4) eliminating seniority rights of recalled employees; and (5) oth- erwise discriminating against employees on their _ return to work. As amended on 9 April 1987, the Union's charge alleges that since about 18 August 1986 the Respondent has discriminated in regard to terms and conditions of employment to discourage membership in the Union by: (1) refusing to offer initial job vacancies created by the departure of permanent replacements, nonstriking employees, or previously reinstated strikers to unreinstated strik- ers or reinstated qualified strikers; (2) refusing to allow strikers reinstated to onerous, undesirable jobs to return to their prestrike jobs; and (3) deny- ing "full reinstatement" to strikers by eliminating their accumulated prestrike seniority or other privi- leges. On that same date the Regional Director issued a complaint which, in paragraphs 6(b) and (c), alleged the following: (b) Since on or about 18 October 1986 and continuing to date, Respondent has implement- ed a policy and procedure whereby job vacan- cies are posted for bidding by unit employees employed in the facility without offering such vacant jobs to unreinstated former striking em- ployees who previously performed said jobs; Since on or about 18 October 1986, and con- tinuing to date, Respondent has implemented a policy and procedure whereby job vacancies are posted in the facility for bidding by unit employees employed in the facility, without af- fording unreinstated former striking employees an opportunity to bid on said job vacancies. On 26 May 1987 the Regional Director issued a notice of hearing that fixed the hearing for 13 July 1987. On 9 July 1987 the Charging Party, during a telephone conversation with the Acting Regional Director, complained that the violations alleged in the complaint deal only with unreinstated strikers and did not treat alleged violations regarding rein- stated strikers. On that same day, after counsel for the General Counsel communicated to the Re- spondent's counsel the reasons for his intention to postpone the hearing to consider the allegations raised by the Union, the Acting Regional Director issued an order postponing the hearing indefinitely. On 13 July 1987 the Charging Party filed a second amended charge alleging discrimination against re- instated strikers by denying them their accumulated prestrike seniority. On 22 July 1987 the Respondent moved the Re- gional Director to reconsider the order postponing the hearing indefinitely or in the alternative to withdraw the complaint and dismiss the charge. On 30 July 1987 the Regional Director denied the Re- spondent's motion. In his order the Regional Direc- tor held that the order postponing "issued upon the Acting Regional Director's own motion, upon dis- covering that certain issues, previously encom- passed within the charge filed by the Charging Party, had been neither considered by the General Counsel nor withdrawn by the Charging Party." On 6 August 1987 the Respondent filed a request for special permission to appeal the ruling of the Regional Director denying • the Respondent's motion to reconsider order postponing hearing in- definitely or in the alternative to withdraw the complaint and dismiss the charge. On 13 August 1987 counsel for the General Counsel filed a re- sponse in opposition to the Respondent's motion. On 21 August 1987 the General Counsel filed a motion to expedite the Board's ruling on the Re- spondent's special appeal, noting, inter alia, that the Regional Director had now issued an amended complaint and was prepared to schedule a hearing on it. Having duly considered, this matter in light of the arguments raised by the Respondent and the General Counsel, the Respondent's request for spe- cial permission to appeal is denied as the Respond- ent has not established that the Acting Regional Director has abused his discretion under Section 102.16 of the Board's Rules and Regulations and Statements of Procedure. CHAIRMAN DOTSON, dissenting. I would direct the Regional Director to proceed forthwith with the hearing. I note that the post- ponement appears to have resulted from the Re- gion's • failure to investigate and dispose of allega- tions within the ambit of the original and first amended charges. This does not appear to be a case of newly discovered evidence as it appears -285 NLRB No. 84 FDL FOODS 623 that the Region initiated an investigation following the unilateral indefinite postponement of the hear- ing 2 days prior to the agreed-upon hearing date. The Practice and Procedure Committee of the American Bar Association has, in the recent past, suggested that this Agency alter its rules and pro- cedures in this area so that, inter alia, requests for postponement of initial hearing dates would not be ruled on' by the Board's Regional offices. I agree with that suggestion. Like Ceasar's wife, this Agency should avoid even the appearance of irreg- ularity where the tactical advantages of postpone- ment are at issue . That requirement can be satisfied by requiring all parties to the prospective litigation to make their case for a change in hearing date to the Judge's Division.