Fdl Foods, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 622 (N.L.R.B. 1987)

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.