Giant Food Stores, Inc. And Easton Development Co.

National Labor Relations Board - Board Decisions

Apr 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.