Giant Food Stores, Inc. And Easton Development Co.

National Labor Relations Board - Board DecisionsApr 30, 1990

298 N.L.R.B. 410 (N.L.R.B. 1990)

410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Giant Food Stores, Inc. and Easton Development Company and United Food and Commercial Workers, Local 1357. Case 4-CA-15117 April 30, 1990 ORDER DENYING MOTIONS BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On June 15, 1989, the Board issued its Decision and Order in this case' in which it, inter alia, dis- missed the complaint allegation that the Respond- ents' maintenance of a civil lawsuit in state court violated Section 8(a)(1) of the National Labor Re- lations Act, but retained jurisdiction over that alle- gation "for the purpose of entertaining an appropri- ate and timely motion for further consideration on a proper showing that the state court proceedings have been completed."2 On August 8, 1989, the General Counsel of the National Labor Relations Board and the Charging Party filed separate motions for reconsideration contending that the Board erred in its application of the Supreme Court's decision in hill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), to this case. The Respondents thereafter filed an opposi- tion to the motions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motions for Reconsideration In the underlying complaint, the General Coun- sel alleged that the Respondents violated Section 8(a)(1) by maintaining, after June 10, 1985, a civil lawsuit in the Pennsylvania state courts against the Charging Party seeking to enjoin trespassory pick- eting at the Respondents' shopping center. Apply- ing the Court's decision in Bill Johnson's Restau- rants, the administrative law judge concluded that the maintenance of the Respondents' lawsuit after June 10, 1985, was not "baseless." Accordingly, the judge dismissed this complaint allegation but re- tained jurisdiction over the allegation pending com- pletion of the state court proceedings. The General Counsel did not except to this con- clusion or any other portion of the judge's deci- sion, which had dismissed the complaint in its en- tirety. Inter alia, the Charging Party filed excep- tions on the Bill Johnson's Restaurants issue con- tending that the judge erred by not finding that the maintenance of the lawsuit after June 21, 1985, ren- dered "that suit `baseless' per the decision of the 1 295 NLRB 330 (1989) Member Devaney did not participate in that decision 2 Id at 334 United States Supreme Court in [Bill Johnson's Res- taurants]." In its brief in support of its exceptions, the Charging Party asserted that by June 21, 1985, 15 or 16 stores had opened in the shopping center and that the Respondents' maintenance of the law- suit beyond that date "was thus `baseless' in state law per the rationale of [Bill Johnson's Restau- rants]." In its earlier decision, the Board found that the Respondents' maintenance of the state court law- suit after the Union filed an unfair labor practice charge on June 10, 1985, did not lack a "reasonable basis" and the Board set out at length its reasons for so concluding. Finding that the lawsuit did not lack a reasonable basis, and in accord with the ana- lytical framework set out by the Supreme Court in Bill Johnson's Restaurants, 461 U.S. at 747, the Board dismissed the complaint allegation regarding the maintenance of the state court lawsuit, but re- tained jurisdiction over that allegation for further consideration on a party's notification of a "final, binding determination or resolution of the merits by the Commonwealth of Pennsylvania." Giant Food Store, supra at 334. In their motions for reconsideration, both the General Counsel and the Charging Party now con- tend that the analytical framework of the Supreme Court's decision in Bill Johnson's Restaurants, ap- plied by the Board in its earlier decision,3 does not apply to this case because the state court lawsuit that forms the basis of the alleged violation was preempted by the Act. As support for their claim that the Board erred in its analytical approach to this case, they cite footnote 5 of Bill Johnson's Res- taurants, 461 U.S. at 737-738, which had not been previously cited to or addressed by the Board. They further assert that the maintenance of a retali- atory lawsuit in state court is an unfair labor prac- tice whenever that state court lawsuit is preempted by the National Labor Relations Act. Section 102.46(b)(2) of the Board's Rules and Regulations provides (in pertinent part): Any exception to a ruling, fording, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. We fmd that the contentions raised by the General Counsel and the Charging Party in their motions for reconsideration, with their reliance on footnote 5 of Bill Johnson's Restaurants as being dispositive of their positions, have been waived inasmuch as they were not previously presented to the Board 3 This framework was essentially also that used by the judge in his un- derlying decision. 298 NLRB No. 50 GIANT FOOD STORES 411 by way of timely exceptions to the judge's decision CHAIRMAN STEPHENS, dissenting. or otherwise. - I do not agree that the General Counsel and the Accordingly, the General Counsel's and the Charging Party waived the argument made in their Charging Party's motions for reconsideration are motions for reconsideration, and I therefore believe denied as raising matters in an untimely fashion.4 that the panel should address the argument on its merits. - 4 In such circumstances , we make no determination on the legal suffi- ciency of the General Counsel 's and Charging Party's arguments.