International Botherhood of Teamsters, Etc.

National Labor Relations Board - Board Decisions

Mar 1, 1961

130 N.L.R.B. 1020 (N.L.R.B. 1961)

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.'.
6. International Brotherhood of Teamsters , Chauffeurs, Warehousemen . and. Help-
ers of America has not by any conduct herein engaged in unfair labor practices
within the meaning of Section 8(b) (4) (A) or (B) of the Act.
[Recommendations omitted from publication.]
International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America ; Truck Drivers & Helpers Local
Union No. 728, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America ; International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Local Union No. 71 ; International Brother-
.hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 55; and General Drivers, Ware-
housemen & Helpers, Local Union No. 509 and Overnite Trans-
portation Company. Case No. 10-CC-4926. March 1, 1961
DECISION AND ORDER
On November 6, 1959, Trial Examiner Charles E. Schneider issued
his Intermediate Report in the above-entitled proceeding, recommend-
ing that the complaint be dismissed in its entirety, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter the
General Counsel filed exceptions and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has reviewed the Intermedi-
ate Report, the exceptions, and the brief, and finds merit in the Gen-
eral Counsel's exceptions.
The complaint in this proceeding is one of two outstanding com-
plaints processed concurrently against the Respondents, in separate
Regional Offices, involving alleged secondary boycott activities in both
Regions in connection with a dispute between the Respondents and
the Employer.
,On June 1, 1959, the Employer and Charging Party, Overnite
Transportation Company, filed with the Regional Director of the
Eleventh Region of the Board at Winston-Salem, North Carolina,
unfair labor practice charges in Case No. 11-CC-16 (130 NLRB
1007), alleging that the Respondents had engaged in violations of
Section 8(b) (4) (A) and (B) of the Act within the Eleventh Region,
at locations in the State of North Carolina.
On June 3, 1959, Overnite filed with the Regional Director of the
Tenth Region of the Board at Atlanta, Georgia, an unfair labor prac-
tice charge in Case No. 10-CC--426, the instant case, alleging that the
Respondents had engaged in violations of Section 8(b) (4) (A) and
130 NLRB No. 106.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1021
(B) of the Act at locations in the State of Georgia, within the Tenth.
Region.
The Regional Director for the Tenth Region issued a complaint on
the charges. in the instant case on July 10, 1959. On July 14, 1959,
the Regional Director for the Eleventh'Region issued a complaint on
the charges in Case No. 11-CC-16.
On August 5, 1959, the hearing on the complaint in Case No. 11-
CC-16, was held before Trial Examiner Schneider, at Asheville,
North Carolina. On August 26, the hearing on the instant case was
held before Trial Examiner Schneider at Atlanta, Georgia.
At both hearings the Respondents moved for dismissal of the com-
plaint on the grounds that the General Counsel had split a single cause
of action. No motion or request for consolidation of the cases was.
ever made by any Respondent.
.The Trial Examiner in his Intermediate Report in Case No. 11-CC-
16, issued October 8, 1959, denied the motion for dismissal of that case.
However, in his Intermediate Report in the instant case, the Trial
Examiner granted Respondents motion and recommended dismissal
of the complaint.
The Trial Examiner based, his-recommendation of dismissal on his
conclusion ' that''the -two .proceedings involve the same controversy, the
same parties, the same issues of fact and law, and•the same violations,
i.e., alleged inducement of employees of secondary employers in order
to force secondary employers to stop doing business with Overnite,
and force 'Overnite to recognize Respondents' as bargaining repre-
sentatives of its employees. The Trial Examiner found, based on these
conclusions, that there was but one cause of action which the General
Counsel was prohibited from maintaining in two proceedings.
We do not agree with the Trial Examiner. Although there are
factors common to the cases which might have justified consolidating
the cases, we find that the General Counsel was not required, under
penaltyof dismissal. of this case, to. consolidate it with Case No. 11-
CC-16. The separate .charges°inthese- cases ' were validly" filed, pur
suant to Section 102.39---61 the Board's Rules and Regulations, which
provides that a charge shall be filed with the Regional Director. for
the Region in which the alleged unfair labor practice has occurred or
is occurring. Section 102.33 would also have permitted the filing of a
single charge covering all of the alleged unfair labor'practices in both
Regions, with the Regional Director of either of the Regions involved,
but contains no requirement that only one charge be filed in these
circumstances.
It is not accurate to say,: as -did the -Trial Examiner, that the, two
cases involved the same violations, or,the same issues of fact and'. law.
No secondary activity ' alleged as a violation in one case was litigated
as a violation in the other case. Further, the violations were different
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in nature . The alleged violations in Case No. 11-CC-16 consisted of
picketing at secondary locations , the legality of which depended on
the application of the doctrine of -the Washington Coca Cola case,'
and related cases . In the instant case , no picketing was involved, and
the issues involve whether various alleged oral appeals , instructions,
or statements constituted unlawful inducement of secondary
employees.
We note that the same objection, that the General Counsel had im-
properly split a single cause of action into two proceedings, was raised
in the U.S. District Court for the Northern District of Georgia (Civil
No. 6886) in one of the two 10(1) injunction proceedings instituted
by the General Counsel in connection with the respective charges.
The court in denying the motion to dismiss on this ground said :
The rule which requires a party not to split his cause of action
and. prosecute it . piecemeal does not require that distinct causes
of action, each of which would authorize independent relief,
should be prosecuted in a single suit 2, , .
Whether these cases were to be consolidated for trial is a matter
governed by Section 102.33 of the Board's Rules and Regulations,
Series 8. Section 102.33 provides, in pertinent part :
Whenever the general counsel deems it necessary. in order to
effectuate the purposes of the act or to avoid unnecessary costs or
delay, he may ... order that such charge and any proceed=
ing... :
(c) Be transferred to and continued in any other region for
. investigation or consolidation with any proceeding .'in
... such other region.
Consolidation pursuant to this rule is, a, matter. within the adminis-
trative discretion .of : the General Counsel e An objection to, consoli-
dation, or, nonconsolidation, cannot be successfully maintained unless
it can be shown that the General. Counsel has arbitrarily abused this
discretion.' There'is in this, record no basis for such a, ,ftnding.. Fur-
1 Washington Coca Cola Bottling Works, 'Inc., 107 ' NLRB 299, enfd. 220 F. 2d 380
(C.A.'D.C.). . 1 .
, : , . . .
8 Citing : 1 Am. Jur. Sec . 100, Actions ; . Stark v . Starr, 94 U.S. 477. See,, also, U.S. v.
Pan American Petroleum ,.55. F. 2d 957 ( C.A. 9), in which the court held that ' procedural
rules 'against splitting a cause of 'action should be interpreted " with liberality in favor
of the Government . This . seems particularly applicable to unfair labor practice proceed-
ings, which are administrative proceedings processed primarily to remedy infringements
of public rights created by the Act . The Supreme Court has held that the differences in
origins and functions between . administrative - agencies and courts preclude , wholesale
transplantation of' the rules of procedure: Federal Communications Commission V.
Pottsville Broadcasting Co., 309 U.S. -134, 142.
sN.L:R:B. v. Tex-O-Kan , Flour. Mills Company, 122 F. 2d,433 '( C.A., 5) ; Pottsville
Proadcasting ' Co., supra,*142-143.
`N.L.R.B ._v.'Southwestern Greyhound Linea, Inc.,. 126 F.. 2d '883 , 887-888 '(C.A.,8).;
N.L.R.B . v. Seamprufe, Inc., 186 F . 2d 671 , 675 (C .A. 10).
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1023
ther, it appears from the circumstances that at the precomplaint stage
of these cases, the procedure followed by the General Counsel was
reasonably calculated to avoid cost and delay, and contribute to the
convenience of the parties. All of the prospective witnesses for the
General Counsel and for Respondents in each case resided near the
place scheduled for hearing in each case. Therefore it was to be
anticipated that the holding of the hearing in each case locally, would
have made it convenient for Respondents and the General Counsel to
produce witnesses. There was no way of anticipating that Respond-
ents would call only one witness in Case No. 11-CC-16, and none in
the instant case. Respondents neither made any request for con-
solidation s nor apprised any representative of the General Counsel
of any considerations which would have warranted consolidation.
Nor do we agree with our dissenting colleague that the alleged
vocal inducement of the employees of 7 or more secondary employers
.in one State can be validly regarded, together with the alleged un-
lawful picketing 'of, 18 secondary employers in another State, as
one basic violation." We cannot agree with his premise that because
the two cases were related, and therefore could have been consolidated
for treatment in a single remedial order, they, must be consolidated.
This premise ignores the above-cited provisions of the Board's Rules
and Regulations which specifically give to the General Counsel
discretion in consolidating, or not consolidating, related charges. The
Board's decision in Peyton Packing Co., cited by our dissenting col-
leagues, are unrelated to the basic issue here. The Peyton cases hold
that, the same single act may not be litigated first as a violation of
Section 8(a) (1), and then litigated in a second proceeding as a vio-
lation of Section 8 (a) (5). It is apparent that there are basic legal
and procedural distinctions between the Peyton cases, and these
cases, because the instant cases involve multiple, separate acts, no one
.of which was the subject of two proceedings.
We therefore do not 'adopt the Trial Examiner's- recommendation
,that the complaint herein be dismissed in its entirety, and shall
remand the case to the Trial Examiner for consideration and findings
on the merits.
[The Board remanded-this proceeding to the Trial Examiner for
'issuance' of a- Supplemental Intermediate Report including findings
of fact, conclusions of law, and a recommended order.]
'MEMBER FANNING, dissenting,:.
Contrary to my colleagues, I would dismiss the complaint herein
because the General. Counsel proceeded -improperly by failing to con-
solidate the charges in, this case, filed with the Board's Tenth Regional
Office, with parallel charges filed with the Board's Eleventh Regional
s Pan American, supra, at 779. '
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office in Case No. 11-CC-16. In my opinion, sound administrative
practice, as well as a basic fairness to all repondents before this Board,,
requires consolidation of related pending charges, such as those here
involved, into one complaint.
Separate charges were filed in this case with the Tenth Region, and
in Case No. 11-CC-16 with the Eleventh Region. The complaints,
issued by each Region alleged that all Respondents, as "joint ven-
turers," violated Section 8(b) (4) (A) and (B) in their endeavors to,
induce secondary employees to quit work in order to force their em-
ployers to cease doing business with Overnite until Overnite recog-
nized Respondents as bargaining representatives of its employees at
installations located in both the Tenth and Eleventh Regions. The
secondary activity alleged against Respondents in the Eleventh Re-
gion consisted mainly of picketing secondary employers, while the
secondary activity in the Tenth Region took the form of oral appeals
to secondary employees to quit work. Notwithstanding "0ll Respond-.
eats were alleged to be guilty of all violations in both complaints as
"joint venturers," and that the presence of all would be required
throughout any hearing on all violations no matter mhere conducted,
the General Counsel elected to proceed against Respondents first in
the Eleventh Region, and subsequently in a separate proceeding in the
Tenth Region. The Trial Examiner at the hearing in Case No.
11-CC-16 asked the General Counsel why the complaint in the instant
case was not consolidated therewith. The General Counsel failed to
provide an explanation, although his pleadings, proceeding on a
"joint venture" theory, made it clear that Respondents were being
charged with engaging in a common course of conduct in both Re
gions involving one basic violation of the Act which could be reme-
died by a single remedial order.
In the Peyton Packing Company cases recently issued," I joined.--
with my colleagues' in dismissing an allegation in a complaint 6ii
the ground that that allegation should have been litigated in an earlier
proceeding against the same respondent employer. In the first of
those cases, a complaint issued alleging that the employer had vio-
lated Section 8(a) (1) of the Act by threatening its employees that
it would withhold a Christmas bonus if they voted for a union, and
by implementing that threat by in fact withholding the bonus. After
this complaint issued, the General Counsel issued a complaint in the
second of these cases alleging that the employer had,, violated- Sec=
tion 8(a) (5) by unilaterally withholding the boliuslithd by., ref
to bargain on the subject of that and future -bonusgs; Although the
Trial Examiner who presided over the first case invited the General
Counsel to consolidate both cases, he declined to do so. In dismissing
6 Peyton Packing Company, Inc., 129 NLRB 1275 ; 129 NLRB 1358.
7 Member Kimball did not participate therein.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS , ETC. 1025
the alleged violation of Section 8 (a) ,(5) in the , second case , which in-
volved a different section of the Act than that involved in the first,
my colleagues and I expressed our disapproval of the practice of
engaging in tandem litigation against the same respondent involving
the same or similar violations of the Act in order to increase the
chances of ultimate success. In doing . so, we observed that
Generally speaking , sound administrative practice, as well as
fairness to respondents , requires the consolidation of all pending
charges into one complaint . The same considerations dictate that,
wherever practicable, there be but a single hearing on all out-
standing violations of the Act involving the same respondent. To,
act otherwise results in the unnecessary harassment of
Respondents.
The practice employed by the General Counsel in the instant case,,
which now bears the stamp of my colleagues ' approval , is precisely-
the-type of tandem litigation which the Board condemned in Peyton.
Packing. Instead of choosing to stand ' or fall=in his litigation of the:
consolidated cases involving a common allegation of misconduct by
all Respondents , the General Counsel insured himself two bites at;
the apple by failing to consolidate , proceeding in the first case and, if-
unsuccessful , proceeding against Respondents on the same violation
in the second . That such procedure not only offends standards of fair-
play and sound administrative practice , but also constitutes unneces-
sary harassment , is pointed up by what actually happened here. After-
the presentation of the General Counsel 's cause in Case No. 11-CC-16,.
the Trial Examiner issued an Intermediate Report in that case finding-
the violations alleged as to all Respondents . In his exceptions to the,.
Intermediate Report , the General Counsel urged that a broad cease--
and-desist order be issued against Respondents prohibiting them from-
inducing employees of any, secondary employer in the course of their-
primary dispute with Overnite . Manifestly;.'. such an order, would
make the litigation in Case No. 10-CC--426, which is here involved,.
unnecessary , for the reach of such an order would stay Respondents'
alleged misconduct not only in the Eleventh but in the Tenth Region.
as well . Thus, after the funds and energies of the Government and.
the parties have been expended in separate injunction proceedings.
before two Federal district courts to enjoin a common course of con-
duct by Respondents, and after successive hearings before a Trial.
Examiner and presentation of two cases to the Board , .a consolidation
of the cases in these , proceedingsy in ,,the 'first instance -.would -,-have,
brought these protracted pieces of multiple litigation to an expeditious.
conclusion.
'1 am not unmindful that the Board's Rules and Regulations em
power the General Counsel with administrative discretion to consoli--
597254-61-vol . 130--66
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date cases where it is necessary "in order to effectuate the purposes of
the Act, or to avoid unnecessary cost or delay." It seems to me that
the very purposes sought to be effectuated by these Rules and Regu-
lations are being thwarted here.
I therefore cannot join my colleagues in remanding this case to the
Trial Examiner for a Supplemental Intermediate Report.
MEMBER JENKINS took no part in the consideration of the above De-
cision and Order.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On June 1 , 1959, Overnite Transportation Company, Richmond , Virginia, filed a
charge with the Board 's Regional Director for the Tenth Region, Atlanta, Georgia,
alleging violations by the Respondents named above, of Section 8(b) (4) (A) and (B)
of the National Labor Relations Act (61.Stat. 136): On July 10, 1959, the General
Counsel , by the Regional Director, issued a complaint , and on July 30, 1959, an
amended complaint alleging violation by the Respondents of the aforesaid provisions
of the Act. In due course the Respondents filed their answers denying the commis-
sion of unfair labor practices.
Upon due notice , a hearing was held at Atlanta, Georgia, on August 26, 1959.
The General Counsel and the Respondents were represented by counsel and par-
ticipated in the hearing . All parties were afforded opportunity to present and to
meet material evidence, to examine and cross-examine witnesses , to argue the issues
orally upon the record , and to , file briefs and proposed findings. On October 14,
1959 , the Respondents and the General Counsel filed briefs, which have been
considered.
In their answers and at the hearing the Respondents moved to dismiss the com-
plaint on the ground , inter alia of multiplicity of suits or splitting causes 'of action.
This motion was taken under advisement and. is disposed of in section III , hereinafter.
Upon the basis of the entire . record in the. case , I make the following:
FINDINGS OF FACT
1. TIM BUSINESS OF OVERNITE
Overnite Transportation Company is a Virginia corporation maintaining its prin-
cipal place of business in Richmond , Virginia , and terminals and places of business
in the States of Virginia , North Carolina , South Carolina , and Georgia. It is
engaged in the transportation of freight by motor vehicle.
During the past 12 months, which period is representative of all times material
herein ; Overnite 's revenue from . the interstate transportation of freight was in excess
of $2,000,000.
II.'THE LABOR ORGANIZATIONS INVOLVED
Each of the Respondents is a labor organization as d^fin^d in Section 2(5) of the
Act. , . .. ..
III. THE ALLEGED UNFAIR PRACTICES
Overnite Transportation Company operates . over a large part of the southeastern
United States-from ' Virginia to Georgia : In the early part of 1959 various local
unions affiliated with the Teamsters International engaged • in a campaign , to organize
Overnite 's employees . In-connection with the campaign several meetings were held
in Atlanta , Georgia, and Charlotte , North Carolina, in April and May 1959 ; between
-representatives of the various local unions involved . In these meetings . courses of
action were discussed and agreed upon with respect to the campaign . On or about
May .16 , 1959 , pursuant to agreement , each of the Respondent Local Unions dis-
patched a telegram to Overniterequesting recognition as collective -bargaining rep-
resentative fo certain of Overnite 's employees in the jurisdictional area of the
particular demanding local; Recognition not being forthcoming , the Respondent
Locals declared a strike 'against Overnite . In connection therewith , pursuant to
agreement , they engaged in picketing and other concerted activity in furtherance
of the dispute , at the places of business of Overnite and of other employers located
in North and South Carolina and in Georgia.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1027
At the outset we are met with a motion to dismiss based on the ground of multi-
plicity of suits or splitting of causes of action . I find the resolution of this issue
dispositive of the case. The facts of the matter are as follows.
On June 1, 1959, following the commencement • of the concerted activity pre-
viously referred to, Ovemite filed the charge here involved with the Board's Re-
.onal Director for the Tenth Region, Atlanta, Georgia. This charge alleged vio-
fation by the Respondents of Section 8(b) (4) (A) and (B) of the Act, by the
asserted inducement and encouragement of employees of certain employers other
than Overnite to refuse to perform work for their employers with the objective of
requiring Overnite to bargain with the Respondents, although the Respondent Locals
were not the certified representatives of Overnite's employees. Three days later,
on June 3, Overnite filed an identical charge, docketed as Case No. 11-CC-16, with
the Regional Director for the Eleventh Region (Winston-Salem, North Carolina).
The only differences between the two charges are the date of filing and the docket
number. .
Upon the Atlanta charge the Atlanta Regional Director issued the complaint herein
on July 10, 1959, and on July 30 an amended complaint alleging violation of the
Act, as charged.'
On July 14, 1959, the Winston-Salem Regional Director issued a. complaint, and
on July 22, 1959, an amended complaint, upon the charge in Case No. 11-CC-16,
alleging violation of Section 8(b) (4) (A) and (B) as charged, .by picketing and
,other action taking place around Asheville and Charlotte, North Carolina.2
On August 5, 1959, a hearing was held at Asheville, North Carolina, before this
Trial Examiner on the allegations of the Winston-Salem complaint. At that hearing
the Respondents moved to dismiss the complaint on the ground of * multiplicity and
.splitting causes of action, grounded upon the pendency of the Atlanta proceeding.
That motion was denied as premature, upon the premise that there was no certainty
of two trials of the action . Under date of October 8, 1959, the Trial Examiner
issued his Intermediate Report and Recommended Order' in the Carolina case find-
ing, in sum, that the Locals had engaged'in'violations -of Section 8(b)(4)(A) and
(B) of the Act, as alleged, but that the International had not.'
In the interim between the close of the Asheville hearing and the issuance of that
Intermediate Report, the hearing on the instant complaint was held in Atlanta' on
August 26, 1959.
Conclusions
The two proceedings involve the same controversy, the same parties, and the same
alleged violations; that is, prohibited inducement of employees to compel Ovemite
to recognize the Respondents as bargaining representatives . The principal difference
'between the cases is that in the Carolina suit. the, unlawful. action alleged. occurred
in Asheville and Charlotte, whereas in Georgia it occurred in Atlanta and Savannah.
In addition there is. a difference-of no apparent materiality-in. the method of
action: In North Carolina it was mainly picketing, with one instance of oral induce-
ment; in Georgia the means asserted as unlawful were exclusively oral. Picketing
at the premises of_Overnite was carried on both in Carolina and in Georgia, but is
-not alleged as an unfair labor practice in either proceeding. ' No unlawful picketing
is alleged in the Georgia case.
. In the Carolina proceeding the' action found unlawful was an 'incident of oral
inducement by an official of 'Respondent Local '55, • and the picketing of secondary
employers' premises with signs proclaiming 'a'strike and advertising that Overnite
was unfair to members of the, Respondent Locals. In Georgia the alleged unlawful
inducement was accomplished through .officials of Respondent Local 728 and of
'Teamsters Joint Council 9. Local 728 is: an Atlanta local; Joint.Council 9-is a
"Carolina organization headquartered. in Charlotte. ' •
The theory of -the. General Counsel'in each case is.that the concerted activity,
wherever occurring, was. a Joint and common venture and undertaking. among the
Respondents. Thus, in his brief in the instant. case the'General Counsel says, that
the Respondents "conspired under a general ' plan to . picket and engage. in illegal
action in an effort to compel recognition," their actions amounting to a joint
-venture. In the Carolina-case I found that the conduct of the locals, though directed
at securing separate recognition for each local, constituted a joint and concerted
action by all of them, and a joint venture. That finding • is reaffirmed: here.-
ment was to add the International as a party Respondent.
1 The effect of the July 30 amendment was to make the International a party Respondent.
2 As was the case with the Atlanta amendment, the effect of the Winston-Salem amend-
1028. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since this was one controversy, one common, integrated course of conduct on
the part of the Respondents, and one basic violation of the statute, remediable by
one common order, the question posed is, why was the issue split into separate.
causes of action? To this question the General Counsel, though requested to do so,.
has provided no answer.3
The General Counsel seeks to distinguish the two proceedings, but I find no,
material distinction between them. Both involve the same basic issue. In sum,
the distinctions suggested by the General Counsel reduce themselves to an assertion.
that the items of evidence offered to support the respective complaints are not the
same. This difference, perhaps material if the issue were one of res adjudicate, is of"
no significance where the issue is the validity of the maintenance of separate actions..
We are brought then to that problem.
There is little Board precedent dealing with the matter; none of it dispositive here..
In the case of N.L.R.B. v. Thompson Products, Inc., 130 F. 2d 363 (C.A. 6), the-
court found the complaint not barred on principles of res adjudicata or of estoppel
where several complaints involving different violations of the Act had been issued
against the respondent over a period of several years. In the course of disposition,.
however, the court said:
Manifestly, good practice and a spirit of fairness dictates the consolidation of
all current grievances into a single complaint, and an employer ought not to
be harassed by repeated charges of invasion of employee rights during a given,
period of time.
In that case the violations were apparently of different kinds, and the charges evi-
dently filed at different times over an extended period. There is no indication in
the Thompson opinion that either the existence or the evidence of other violations,
was known at the: time . of the" issuance of. the earlier complaints. .The court also,
found 'the:unfair labor practices involved 'domination of a union) to ".be-of a con-
tinuing nature. Here the' Georgia violations,-.were-of the same, kind as those in
Carolina; their existence had been ascertained and' made the subject-of complaint-
before the issuance of the Carolina complaint. The unfair practices alleged here
are not of a continuing nature. The Thompson case is therefore not authority for
over-ruling the motion to dismiss.
Fairly viewed, however, I believe it may be authority for the proposition that, so
far as practicable, all known matter relating to a particular controversy and charge,
and having bearing on the violations alleged, should be adjudicated in a single com
-plaint; that is to say, in the absence of adequate reason, a common cause of action
involving the same parties, controversy, violation, and remedy, should not be split
or multiplied into separate proceedings.
The only other Board case to which I have been referred relevant to the problem
is that of International Typographical Union, et al., 87 NLRB 1418, 1424-1425. In
that case the respondent claimed that multiplicity of suits constituted a denial of
due process and harassment by the General Counsel, in "litigating the legality "of the
respondent's "Collective Bargaining Policy" in separate proceedings. The Board
"found no abuse of discretion by The General Counsel amounting to denial of due
process. There, however, different parties were involved, in the different cases.
The Board finding no substantial ,. prejudice; said:,.
While the •legalLissues were often the same in all .these -cases, 'different "charging
and respondent parties were involved who l could 'not be found-' iti =any ,one .or
any combination of the'other cases then.-pending.
In the instant case 's the Charging and Respondent Parties are identical. All will
be bound by 'the result in either action. The order 'recommended 'in the 'Carolina
case will, if adopted by the Board, 'fully restrain unlawful conduct of 'the 'kind 'in-
volved, whether occurring in the CarSlifias or in Georgia.
The policy bf'the law is to compel a,partyto litigate ' an entire 'demand-in a'single
action. O'Daugherty 'v. Remin"gtoh. 81 N.Y. 496. This is 'so wh'ether the attempt
to do dtherwise 'is 'described as multiplicity of suits or as splitting 'of 'actions. The
intiltiplicityconcept'i"s said to be,
A phrase' descriptive- of "a (state of affairs where several -different 'actions are
-brought:on the same issue.4,
It is also said 'to be applicable 'when one 'party may be 'sued several times in rela-
tion to the same subject matter in its entirety, or in respect to some element or
'
At 'the 'instant hearing 'the Trial Examiner asked 'for an 'explanation -in the General
Counsel's brief for the institution of separate actions. None has been given.
• 27 Words and Phrases Perm . 734, quoting Williams v . Millington, 1 H. Bl . 81, 83.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ETC. 1029
elements thereof. Lincoln v. Superior Court, 51 Cal. App. 2d 61. In appropriate
circumstances it may be ground for injunctive relief (Cyclopedia of Federal Pro-
.cedure, 3d ed., 73.16), or for declaratory judgment (Id. 90.23; Federal Telephone v.
Associated Co.,-169 F. 2d 1012; cert. denied 335 U.S. 859).
The principle is founded upon the desirability of single suits to. dispose of single
controversies. Thus, in Hartford Co. v. Weeks, Tex. Civ. App., 161 S.W. 2d 153,
154, the court said:
The policy which forbids a multiplicity of suits is designed to prevent more
than one suit growing out of the same subject matter of litigation, and to require
parties to settle their controversies in a single suit, if practicable.
Splitting of a cause of action is described as "The bringing of an action for only
a part of the cause of action," 1 C.J. Secundum 1306; and as "dividing ^a single
or indivisible cause of action into several parts or claims and bringing several
actions thereon." Tuttle v. Everhot Co., 264 Mich 60.
Such a procedure is frowned upon by the law. The courts unanimously agree upon
the principle that a single cause of action may not be split into several actions."
1 Am. Juris. 482. The rule is based upon "principles of public policy. . . As a
defense it is not an estoppel, but a bar." 1 C.J. Secundum 1309. Its object is the
same as that of, the ban against multiplicity of suits: "to protect a defendant from
the vexations and burdens incident to a duplication or multiplication of actions
to enforce a liability for which one suit would be sufficient." Rosenstein v. Hynson,
157 Md. 626. And see Coy v. St. Louis R. R., 186 Mo. App. 408; 1 C.J. Secundum
1308. The principle is thus summed up in 1 Am. Juris. 480:
The law does not permit the owner of a single or entire cause of action or
an entire or indivisible demand,. without the consent of the person against whom
the cause or demand exists, to divide or split that cause or demand so as to
make it the subject of several actions. The whole cause must be determined
in one action. If suit is brought for a part of a claim, a judgment obtained in
that action precludes the plaintiff from bringing a second action for the residue
of the claim, notwithstanding the second form of action is not identical with the
first, or different grounds for relief are set forth in the second suit. This prin-
ciple not only embraces what was actually determined, but also extends to every
other matter which the parties might have litigated in the case. The rule is
founded upon the plainest and most substantial justice, namely, that litigation
should have an end and that no person should be unnecessarily harassed with
a multiplicity of suits.
And in 1 C.J. Secundum 1306, the principle is stated in substantially the same way:
A single cause of action or entire claim or demand cannot be split up or
divided and separate suits maintained for the various parts, thereof, nor can a
party divide the grounds of recovery and maintain successive actions for the
cause thereon. Where separate actions are brought on the different parts of
the cause of action as split, as is shown in Sec. 45 of the title Abatement and
Revival, the pendency of the first may be pleaded in abatement of all subse-
quent actions for the balance of the cause of action, . and, as appears in Judg-
ments, sec. 600-668 [34'C.J. 8271 a judgment upon the merits in either operates
as a bar to a recovery in the others.
There are, of course, situations in which the principle is inapplicable; as, for
example, where the parties are not the same, where the issues are different, where
other remedies are appropriate, or where the existence of other grounds was un-
known or unestablished at the time of institution of the original action. No doubt
there are also other exceptions.
On its face .the situation here is one in which the prohibition is particularly appli-
cable. No useful purpose is apparent in the maintenance of seperate proceedings.
No reason appears or is suggested why a single consolidated suit would not fully
and effectively resolve the issue as to the legality of the Respondents' conduct. In
these circumstances I conclude that the Atlanta complaint should be dismissed.
If the General Counsel can, without adequate cause shown, compel parties to
defend themselves in separate actions in different states at relatively concurrent
times, upon the same issues of fact and law arising out a single and indivisible con-
troversy and course of action, the effect is to promote unnecessary and vexatious
litigation with no resultant public good. This I think does not tend to effectuate the
policies of the Act.
It is recognized that the General Counsel is vested with discretionary authority
to consolidate proceedings under the Rules and Regulations of the Board, Series 8,
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 102.33. The issue here, however, is not whether the General Counsel should
have consolidated the cases , but what the legal effect is where he has not done so.
Inquiry into that question is not foreclosed by the existence of power in the General
Counsel to act. Otherwise no public authority would be judically reviewable. The
discretion. of the General Counsel, like that of all governmental agents and bodies,.
must be exercised with due regard for the rights and convenience of parties. What
the Sixth Court of Appeals said in the case of N.L.R.B. v. The Ann Arbor Press,.
117 F. 2d 786, 790, with respect to the exercise of discretionary power seems appli-
cable here. In that case the Board, in order to avoid interference by the State
courts of Michigan, held the hearing in Washington, D.C., rather than at the
Respondents' residence and place of business in Ann Arbor. In finding inherent
limitations upon .the Board's power to set the place of hearing, the court said:
[The Board] urges on us that under the above provisions of the Act, it has the
uncontrolled discretion to hold hearings at whatever point it deems proper within
the United States and its territories. To this we cannot agree. In the Act,"
the Congress manifests an intention to create. a system for the prevention of
controversies between employers and employees and it is the duty of the court
to effectuate that purpose by 'such construction as will make the system con-
sistent'in all of its parts and uniform in. all of its operations. To this end, the
procedure must harmonize with the characteristics of our system of govern-
ment that the law is supreme, which means, in the first place, the absolute
supremacy or preponderance of regular law as opposed to the influence of
arbitrary power. It excludes the existence of arbitrariness, of prerogative, or
even of wide discretionary authority on the part of government. Where great
.inconvenience will result to persons affected by a statute from a particular
construction that construction should be avoided unless the meaning of the
legislature is so plain no other is possible.
Manifestly the principles stated by the court of appeals are applicable whoever
the respondent .5
That the Respondents filed no motion requesting that the cases be consolidated
is immaterial. In the first place such a motion to the trial examiner is futile: the
Trial Examiner has no authority to consolidate complaints. Wilson & Co., 89 NLRB
310, footnote 3. In the second place there is no reason to suppose that the General
Counsel would have considered such an application favorably. In both the Carolina
and the Georgia cases the issue as to the propriety of separate actions was raised
by the Respondents successively by answer, by motion to dismiss, and by argument.
In discussion of the problem in the Asheville hearing suggestion was made, though
not by the Respondents, that the General Counsel consolidate the proceedings. He
chose not to do so, without explanation. In these circumstances the failure of the
Respondents to move to consolidate has no significance.
The General Counsel also urges in his brief that the Respondents have shown
no prejudice by the maintenance of separate actions. However, prejudice is implied
wherever proceedings have been improperly split or multiplied. In any event actual
prejudice is apparent in the requirement for separate appearances, defenses, records,
and the duplication of evidenciary material , argument, and briefs. In addition, there
is the possibility of the Respondents being subjected to litigation in different courts
of appears over the same basic action, Atlanta being with in the jurisdiction of the
Fifth Courts of Appeals, and Asheville in the Fourth. Moreover, the Government
also has a stake in the avoidance of unnecessary and expensive litigation.
Upon the basis of the foregoing findings it will be recommended that the com-
plaint herein be dismissed. In view of the basis for the recommendation it is un-
necessary to consider whether the evidence adduced would establish violations of the
Act.
[Recommendations omitted from publication.]
E In the Carolina case Respondent Local 728 raised the, additional objection that the
fact that the instant complaint was outstanding at its place of residence and business in
Atlanta, also constituted ground for dismissal of the Carolina proceeding. It will be
noted, however, that in that case the General Counsel alleged, and I found, that Local 728
committed unfair labor practices at the place of hearing. In the Ann Arbor case the
respondent committed no unfair labor practices within reasonable distance of Washington,
D.C. In the present case all Respondents are alleged to have committed unfair labor
practices in the area of the hearing. That the hearing is removed from the principal
place of business or residence of some of the Respondents is therefore not a defense
under the circumstances.