Facet Enterprises, Inc.

984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Purolator Products, Inc. and its successor Purolator Products, Inc., Division of Facet Enterprises, Inc. and United Paperworkers International Union, AFL-CIO, CLC. Case 11-CA-12446 July 21, 1988 DECISION AND ORDER BY MEMBERS JOHANSON, BABSON, AND CRACRAFT Upon a charge filed by the Union on July 21, 1987, the General Counsel for the National Labor Relations Board issued a complaint on December 10, 1987, against the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on January 23, 1987, Supervisor Leonard Barber solicited an employee to circulate and obtain other employees' signatures on a petition to decertify the Union; that in mid- March 1987, Barber instructed an employee to pro- vide false information in the event of an inquiry concerning the origins of the petition to decertify the Union; and that also in mid-March, Barber so- licited an employee to refuse to cooperate with a Board agent during an investigation concerning the origins of a petition to decertify the Union. The complaint alleges that by these acts the Respondent has violated Section 8(a)(1) of the Act. The com- plaint further alleges that on February 2, 1987, the Respondent violated Section 8(a)(5) and (1) of the Act by withdrawing recognition from the Union as the exclusive collective-bargaining representative of unit employees, based on a decertification peti- tion that had been obtained through the unlawful assistance of the Respondent, and by refusing to bargain in good faith with the Union since that date. On December 16, 1987, the Respondent filed its answer admitting in part and denying in part the allegations in the complaint, and raising affirmative defenses. As an affirmative defense, the Respondent contends that the complaint is barred by prior liti- gation in consolidated Cases 11-CA-12071, 11- CA-12084, 11-CA-12117, and 11-CA-12288 (col- lectively Case 11-CA-12071 et al.) and that the complaint should be dismissed.' On December 22, 1987, the Respondent filed a Motion for Summary Judgment and a brief in sup- port thereof and in opposition to the General Counsel's motion to remand with exhibits attached, i On December 14, 1987, the General Counsel filed a motion to remand proceedings to the administrative law judge to reopen record, consolidate cases, and conduct hearing in Case 1I-CA-12071 et al In that motion the General Counsel sought to consolidate the instant case with Case I1-CA-12071 et al renewing its contention that the complaint was barred by the prior litigation of the issue of with- drawal of recognition in Case 11-CA-12071 et al. The Respondent also contends that in the prior liti- gation the General Counsel specifically disavowed the theory of withdrawal of recognition, which she now attempts to resurrect. On January 6, 1988, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The General Counsel filed a response, alleging that the facts in the instant case were un- known to the General Counsel and the Charging Party and could not have been readily discovered by either party prior to the May 18 and 19, 1987 trial of Case 11-CA-12071 et al. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on the Motion for Summary Judgment The undisputed facts show that a petition to de- certify the Union was circulated among the Re- spondent's employees during December 1986 and January 1987. On February 17, 1987, the Union filed a charge in Case 11-CA-12288 alleging, inter alia, that the Respondent had unlawfully with- drawn recognition from the Union on February 2, 1987. On April 30, 1987, the General Counsel issued a consolidated complaint which consolidated Case 11-CA-12288 with Cases 11-CA-12071, 11- CA-12084, and 11-CA-12117 and which alleged, inter alia, that "[o]n or about February 2, 1987, [Respondent] unlawfully withdrew recognition from the Union." On May 18, 1987, at the start of the hearing in Case 11-CA-12071 et al., the Gener- al Counsel stipulated that she did not "contend that the Respondent unlawfully assisted or encouraged the [decertification] petition with respect to this proceeding." The General Counsel further stipulat- ed that "[t]he only issue concerning the withdrawal of recognition" allegation of the complaint "is whether Respondent was entitled to rely on the pe- tition in light of the other unfair labor practices" alleged. On July 21, 1987, the Union filed the charge in the instant proceeding (Case 11-CA-12446), alleg- ing that the Respondent unlawfully assisted or en- couraged employees in circulating the decertifica- tion petition. In a letter dated July 24, 1987, the Respondent requested dismissal of the charge, citing Jefferson Chemical Co., 200 NLRB 992 (1972).2 On August 25, 1987, the Regional Direc- 2 In Jefferson Chemical Co, the Board adopted the judge's grant of the respondent's Motion for Summary Judgment and dismissal of a com- Continued 289 NLRB No. 99 PUROLATOR PRODUCTS 985 tor, citing Jefferson Chemical Co., refused to issue a complaint, asserting that the evidence presented, in whole or in part, was known or could have been known to the General Counsel at the time Case 11- CA-12071 et at. was being litigated. The Union ap- pealed the Regional Director's refusal to issue a complaint, and the appeal was sustained . Thereaf- ter, the Regional Director issued the complaint at issue here. As stated above, the instant complaint alleges that the Respondent violated Section 8(a)(1) by certain statements made to employees in Janu- ary and March 1987 and that the Respondent vio- lated Section 8(a)(5) by withdrawing recognition from the Union on February 2, 1987. In its Motion for Summary Judgment , the Re- spondent contends that Jefferson Chemical Co. bars the General Counsel from relitigating the issue of the Respondent's withdrawal of recognition from the Union. In her motion opposing summary judg- ment, the General Counsel asserts: During the course of the investigation in Case No. 11-CA-12446, evidence was presented which conclusively demonstrated that during the 10(b) period, admitted supervisor Leonard Barber had asked an employee to sign the de- certification petition, directed her to get other employees to sign the petition and instructed the employee to deliberately falsify informa- tion if anyone from the Union or the Board asked about his involvement with such peti- tion. The General Counsel contends that during the in- vestigation of Case 11-CA-12288 the Regional Di- rector was only aware that an employee had signed the petition and had asked others to do the same; and that, while not compelled to do so, the Re- gional Director unsuccessfully attempted to contact the employee . Thus, the General Counsel argues that the evidence of "supervisory taint" was un- known to both the General Counsel and the Charg- ing Party and could not have been readily discov- ered by either party prior to the May 18 and 19, 1987 trial of Case 11-CA-12071 et al. The General Counsel further argues that the evidence in the in- plaint, which alleged that the Respondent had engaged in surface bar- gaining in violation of Sec. 8(a)(5) of the Act. The judge found that the complaint was based on events that were , or should have been, known to the General Counsel through the investigation of a broad refusal -to-bar- gain allegation in a prior charge . The Board held that the General Coun- sel is dutybound to investigate all matters that are encompassed by the charge and to proceed appropriately thereafter . The Board stated that "multiple litigation of issues which should have been presented in the ini- tial proceeding constitutes a waste of resources and an abuse of our proc- esses ...... 200 NLRB at 992 fn. 3. stant case, if credited, would establish that the Re- spondent urged an employee to mislead the Union and the Board if inquiries were made about the su- pervisor's involvement with the petition . The Gen- eral Counsel contends that because the Respondent played an active part in suppressing the evidence, it can not equitably or legally argue for its exclusion. Relying on Jefferson Chemical Co., supra, we conclude that the Respondent is entitled to summa- ry judgment as a matter of law. The uncontrovert- ed facts establish that on February 17, 1987, the Union filed a charge in Case 11-CA- 12288, alleg- ing that the Respondent withdrew recognition from the Union in violation of Section 8(a)(5); that the General Counsel investigated that charge and issued a complaint containing an unlawful with- drawal of recognition allegation; and that at the May 18, 1987 hearing the General Counsel specifi- cally declined to pursue any contention that the Respondent unlawfully assisted or encouraged the decertification petition that formed the basis for the withdrawal of recognition. Nevertheless, the Gen- eral Counsel now seeks in the instant complaint to relitigate the withdrawal-of-recognition issue rely- ing on the theory she previously disavowed and on events occurring prior to the May 18, 1987 hear- ing. Under Jefferson Chemical, "such multiple liti- gation of issues which should have been presented in the initial proceeding" is not permitted.3 We therefore conclude that the instant complaint is based on events which took place prior to the May 18, 1987 hearing in Case 11-CA-12071 et al. and which were, or should have been, known to the General Counsel by virtue of her investigation of the charge in Case 11-CA-12288 . Accordingly, the complaint must be dismissed on the authority of Jefferson Chemical Co. ORDER It is ordered that the Respondent's Motion for Summary Judgment be granted and the complaint is dismissed. 3 We note that, as stated above, the Regional Director initially refused to issue a complaint on the basis of the instant charge specifically because the evidence presented was known or could have been known to the General Counsel at the time Case 1l -CA-12071 et al. was litigated. Member Cracraft additionally notes that the General Counsel has not shown by any admissible evidence that this case would fall outside the scope of Jefferson Chemical Co. As set forth in Rule 56(e) of the Federal Rules of Civil Procedure, the General Counsel must rely on more than the bare allegation that the evidence in the instant case was unknown to the General Counsel and was not readily discoverable prior to the hear- ing in Case 11-CA-12071 et al. Thus, in Member Cracraft's view, the General Counsel's failure to attach a supporting affidavit or exhibit to the motion opposing summary judgment precludes fording a genuine issue as to any material fact.