Heaven

National Labor Relations Board - Board DecisionsSep 23, 1988

290 N.L.R.B. 1223 (N.L.R.B. 1988)

HEAVEN 1223 Stern Entertainment System , Inc. t/a Heaven and A. Blane Volovicly Jacqueline M. Fritz, Truman Fees, Carl Morris, and William Croft , Jr. Cases 6-CA-14978 and 6-CA-15011 September 23, 1988 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 25, 1983 , the Regional Director for Region 6 of the National Labor Relations Board issued an amended consolidated complaint in Cases 6-CA-14978 and 6-CA-15011 containing allega- tions from the charges in Cases 6-CA-15030, 6- CA-15031, and 6-CA-15038, which had been dis- missed by the Regional Director on February 23, 1983 1 On March 7, 1983, the Respondent filed a Second Motion for Partial Summary Judgment, al- leging that the General Counsel had improperly in- cluded allegations from the dismissed charges in Cases 6-CA-15030,6-CA-15031, and 6-CA-15038, and had improperly reinstated the previously dis- missed charge in Case 6-CA-15011 On April 6, 1983 , the Regional Director referred the Respond- ent's second motion to the Board The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel We shall deny the Respondent's Second Motion for Partial Summary Judgment and allow the Gen- eral Counsel to litigate the allegations involving employees Croft, Fees, Fritz, and Morris For the reasons set forth in our decision in Redd-I, Inc, 290 NLRB 1115 (1988), we do not find the with- drawal and dismissal of earlier timely charges con- cerning these employees relevant in deciding whether the allegations are closely related to the allegations of the pending timely filed charge in- volving employee Volovich At this stage in the proceeding, we find these allegations are not barred under Section 10(b) because the alleged vio- lations occurred within 6 months of the timely Vo- lovich charge and they appear to be factually and legally related to the allegations of that charge Therefore, we shall permit the parties to present evidence on all the complaint allegations so that a judge can decide whether the otherwise untimely i On February 4, 1983, the Respondent had filed a Motion for Partial Summary Judgment contending that the Regional Director had improp- erly reinstated the withdrawn charges in Cases 6-CA-15030, 6-CA- 15031 , and 6-CA- 15038 and the dismissed charge in Case 6-CA-15011 On February 16, 1983, the aboventitled proceeding had been transferred to the Board On February 23, 1983 , the Regional Director had dismissed the charges in Cases 6-CA-15030, 6-CA-15031, and 6-CA-15038, thus rendering the Respondent's motion moot On February 25, 1983, the Acting Regional Director issued this amended consolidated complaint, which included the allegations from the three dismissed charges allegations are closely related to the Volovich charge The relevant procedural history of these allega- tions is as follows On October 6, 1981, a charge was filed in Case 6-CA-14978, alleging that A Blane Volovich had been discharged on October 6, 1981, because of his union activities On October 19, 1981 , a charge was filed in Case 6-CA-15011 alleging that Jacqueline M Fritz had been refused a promotion because of her union activities On October 26, 1981 , the charge in Case 6-CA-15011 was amended to include, inter alia , the allegation that Fritz had been discharged on October 23, 1981 , because of her union activities On October 23, 1981 , a charge was filed in Case 6-CA-15030 alleging that Truman Fees had been discharged on October 22, 1981 , because of his union activities On October 23, 1981, a charge was filed in Case 6- CA-15031 alleging that Carl Morris had been dis- charged on October 22, 1981 , because of his union activities On October 26, 1981 , a charge was filed in Case 6-CA-15038 alleging that William Croft, Jr had been discharged on October 22, 1981, be- cause of his union activities On December 29, 1981 , the charge in Case 6- CA-14978 was amended to allege that Volovich had been discharged because of his protected con- certed activities On January 28, 1982, the Acting Regional Director issued a complaint in Case 6- CA-14978 alleging, inter alia, that the Respondent violated Section 8(a)(1) by discharging Volovich for his protected concerted activities On the same date, the Acting Regional Director approved with- drawals of the charges in Cases 6 -CA-15030 (Fees), 6-CA-15031 (Morris), and 6-CA-15038 (Croft) and dismissed the charge filed by Fritz in Case 6-CA-15011 On August 3, 1982, alleging newly discovered evidence, the Regional Director revoked his earlier approval of the withdrawals in Cases 6 -CA-15030 (Fees), 6-CA-15031 (Morris), and 6-CA-15038 (Croft), rescinded the dismissal in Case 6-CA- 15011 (Fritz), and reopened the matter for further investigation into the alleged charges On October 8, 1982, the Acting Regional Director issued a con- solidated complaint in all of these cases alleging, inter alia, that the Respondent violated Section 8(a)(1) by discharging Volovich and that it violated Section 8(a)(1) and (3) by discharging Fees , Morns, Croft, and Fritz On February 4, 1983, the Respondent filed a Motion for Partial Summary Judgment, contending that under Winer Motors, 265 NLRB 1457 (1982), the Regional Director was precluded from reinstat- ing the withdrawn charges filed by Fees, Morris, and Croft in Cases 6-CA-15030, 6-CA-15031, and 290 NLRB No 167 1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6-CA-15038. The Respondent further argued that while Winer Motors allowed the General Counsel to reinstate dismissed,2 as opposed to withdrawn, charges the Regional Director in this case never- theless improperly reinstated the charge filed by Fritz in Case 6-CA-15011 because he failed to dis- close the newly discovered evidence on which he purportedly relied. On February 15 and 16, 1983, the charges in Cases 6-CA-14978 (Volovich) and 6-CA-15011 (Fritz) were amended to include the discharges of Fees, Morris, Croft and Fritz, and to allege that all the discharges, including Volovich's, violated Section 8(a)(1) and (3). On February 23, 1983, the Regional Director dismissed the charges in Cases 6-CA-15030, 6-CA-15031, and 6-CA- 15038 under Winer Motors, thereby rendering moot the Respondent's motion to dismiss those charges. On February 25, 1983, the Regional Director issued an amended consolidated complaint in Cases 6-CA-14978 (Volovich) and 6-CA-15011 (Fritz), which included the allegations concerning Fees, Morris, and Croft that had been contained in their dismissed charges and which alleged that all five employees had been discharged because of their union activities in violation of Section 8(a)(1) and (3). In her February 28, 1983 response to the Re- spondent's first Motion for Partial Summary Judg- ment, the General Counsel contended that the Re- gional Director had properly included the allega- tions contained in the Fees, Morris, Croft, and Fritz charges in the consolidated complaint in Case 6-CA-14978, which was based on a timely filed charge that had never been withdrawn or dis- missed. The General Counsel argued that the alle- gations in the Fees, Morris, Croft, and Fritz charges were closely related to the allegations in the charge still pending on behalf of Volovich in Case 6-CA-14978 and were properly included in the pending complaint under the "closely related" test set forth in Gocat Inc., 257 NLRB 270 (1981). Gocat holds that a complaint based on a timely filed charge may allege violations not alleged in the charge if they are closely related to the viola- tions named in the charge and occurred within 6 months before the filing of the charge. In response to the General Counsel, the Re- spondent filed a Second Motion for Partial Summa- ry Judgment on March 7, 1983. It contends that the Board's intent in Winer Motors would be sub- verted if the February 25, 1983 amended consoli- dated complaint is permitted to be litigated; that the charges filed by Fees, Morris, Croft, and Fritz related to their union activity and thus cannot be 2 See Winer Motors, supra at 1459-1460, former Member Zimmerman's concurring opinion. attached to the charge filed by Volovich, which was based on concerted activity predating the ar- rival of the Union; and that the General Counsel reinstated Fritz' charge based on the discovery of new evidence without disclosing the nature of this evidence. On April 25, 1983, the General Counsel filed a response to the Respondent's second motion reiterating her contentions that the pending com- plaint based on Volovich's charge was properly amended to include Fees, Morris, Croft, and Fritz as additional discriminatees, because their dis- charges occurred during the same organizational campaign as the discharge of Volovich. We find merit in the General Counsel's argument that the "closely related" test is applicable here. In Redd-I, supra, the Board held that in deciding whether allegations are closely related, it would apply the traditional "closely related" test to deter- mine if an otherwise untimely allegation is factually and legally related to the allegations of a timely charge, without regard to whether another charge encompassing the untimely allegation has been withdrawn or dismissed. In this case, we find that the bare allegations do not provide enough information for us to determine whether the allegations meet the traditional "close- ly related" test described in Redd-I. Clearly, the discharges of Fees, Morris, Croft, and Fritz3 oc- curred within 6 months before the filing of Volo- vich's timely charge. Further, it appears that the otherwise untimely allegations are of the same class as the allegations in the Volovich charge because they all involve discharges in retaliation against union activities in violation of Section 8(a)(3).4 However, we cannot tell whether all the dis- charges arose from the same factual situation or se- quence of events. The complaint alleges that all the discharges involve similar conduct during the same 2-week period, and the General Counsel contends that they all have the same object because they all arose out of the same organizational campaign. 8 As noted earlier, the Regional Director, in accord with Winer Motors, supra, dismissed the charges filed by Fees, Morris, and Croft that had been withdrawn . Regarding Fritz, the Regional Director found that be- cause her charge had not been withdrawn but dismissed , Winer Motors did not preclude its reinstatement . However, the Board has subsequently reversed that aspect of Winer Motors. Thus, in Ducane Heating Corp., 273 NLRB 1389 (1985), the Board found that withdrawn and dismissed charges should be treated alike and, absent fraudulent concealment of un- lawful activity, neither can be reinstated outside the 6-month limitations proviso of Sec. 10(b). Here, there is no contention of fraudulent conceal- ment concerning Fritz' charge which would warrant extending the limi- tations proviso. Accordingly, the Regional Director erred in reinstating the charge in Case 6-CA-15011. However, for the reasons set forth in this decision, the dismissal of Fritz' charge does not foreclose litigation on the merits of the allegations contained in her charge if they prove to be closely related to the allegations contained in the charge timely filed by Volovich. 4 The original Volovich charge as well as the second amended charge in his case allege his discharge was for union activities. HEAVEN However, we have no other information about the circumstances surrounding these discharges, such as the reasons given or the events leading up to the discharge of each employee On this record it would be premature to decide whether all of the allegations are closely related Therefore, we will allow litigation on the merits of all the allegations in order to decide if they are closely related ORDER It is ordered that the Respondent 's Second Motion for Summary Judgment is denied IT IS FURTHER ORDERED that the charge in Case 6-CA-15011 is dismissed IT IS FURTHER ORDERED that the proceeding is remanded to the Regional Director for Region 6 to arrange a hearing and issue notice to the parties CHAIRMAN STEPHENS, dissenting In accord with the views expressed in my dis- senting opinion in Redd-I, Inc, 290 NLRB 1115 (1988), I find that the circumstances presented in this case call for granting the Respondent's Second Motion for Partial Summary Judgment regarding allegations as to employees Fritz, Fees , Morris, and Croft Even assuming that the "closely related" doctrine would permit consideration of the allega- tions as to these four employees under the Volo- vich charge if the charges in Cases 6-CA-15011, 6-CA-15030, 6-CA-15031, and 6-CA-15038 had never been filed in the first instance , the sequence of charge filings and withdrawals here is such that the Respondent would not reasonably have be- lieved at the expiration of the 10(b) period that it might have to litigate allegations pertaining to these four employees 1225 In my view , the critical facts are these The first unfair labor practice charge filed on October 6, 1981, alleged that Volovich had been discharged on that day because of union activities , in violation of Section 8(a)(3) and (1) Later that same month, charges were filed as to employees Fees, Croft, and Moms, alleging that they were discharged on Oc- tober 22 for their union activities in violation of Section 8(a)(3) and (1) Charges were also filed in late October on behalf of employee Fritz for a denial of a promotion followed by a discharge on October 23-both alleged to be based on union ac- tivities in violation of Section 8(a)(3) On December 29, however, Volovich's October 6 charge was amended so as to replace the 8(a)(3) allegation with an allegation that he had been dis- charged, in violation of Section 8(a)(l), for engag- ing in protected concerted activity On January 28, 1982, complete withdrawals were accepted on three of the other employees ' charges, the fourth employee's charge was dismissed , and a complaint issued based solely on the Volovich 8(a)(1) charge No further charges were filed by any of these em- ployees in 1982 Thus, when the 10(b) period had run in April as to the charges filed on behalf of the employees other than Volovich, the Respondent knew that the Regional Director had considered and rejected claims that the Respondent had dis- charged employees in October 1981 to discourage the union organizing campaign , and it would not reasonably have contemplated litigating any matter other than Volovich's discharge allegedly for en- gaging in a concerted protest over working condi- tions Accordingly, for these reasons , I would grant the Respondent's Second Motion for Partial Summary Judgment