96 N.L.R.B. 1387 (N.L.R.B. 1951)

National Container Corp.

National Labor Relations Board - Board DecisionsNov 9, 1951

96 N.L.R.B. 1387 (N.L.R.B. 1951)

NATIONAL CONTAINER CORPORATION 1387 NATIONAL CONTAINER CORPORATION and INDEPENDENT CORRUGATED WORKERS UNION OF AMERICA , LOCAL No . 1, PETITIONER and U. S. CORRUGATED WORKERS UNION, LOCAL No. 444, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS) AFL NATIONAL CONTAINER CORPORATION and INDEPENDENT CORRUGATED WORKERS UNION OF AMERICA , LOCAL No. 1 and U. S . CORRUGATED WORKERS UNION, LOCAL No. 444, INTERNATIONAL BROTHERHOOD OF PULP , SULPHITE AND PAPER MILL WORKERS , AFL. Cases Nos. 2-RC-1839 and 2-CA-1.l M. November 9, 1951 Decision on Motion Pursuant to a Board Order consolidating the above-entitled cases, a consolidated hearing was held on various dates between April 23 and May 11, 1951, before Charles W. Schneider, Trial Examiner. On June 27, 1954 the Trial Examiner issued his Intermediate Report and Recommended Order, in which he recommended that the complaint in Case No. 2-CA-1436 be dismissed on the ground that the charging union, Independent Corrugated Workers Union of America, Local No. 1, herein called the Independent, had permitted its compliance with the filing requirements of the Act to lapse temporarily on the date of issuance of the complaint. With respect to Case No. 2-RC- 1839, he recommended that the objections to the election be dismissed because more than a year had elapsed since the date of the election. Thereafter, the Independent filed exceptions to the Intermediate Re- port and a supporting memorandum; the Employer filed a reply to the exceptions. On August 9, 1951, the General Counsel filed a motion with the Board for leave to withdraw the complaint, "without prejudice to the General Counsel's right hereafter to issue a new complaint," and on August 17, 1951, the Board issued its notice to show cause, whereby all parties were afforded an opportunity to state their positions on the motion. U. S. Corrugated Workers Union, Local 444, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL, herein called the AFL, the Employer and the Independent, all filed responses in opposition to the motion. 1. The complaint herein was issued on March 7, 1951. It is not disputed that the Independent's compliance with Section 9 (g) of the Act lapsed between March 1 and March 14,1951. The Trial Exam- iner limited his report dismissing the complaint solely to the ground of noncompliance. He did not report on any of the evidence in the 96 NLRB No. 210. 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record or consider the merits of the complaint in any respect. The General Counsel's motion is based essentially on the assertion, not questioned by any of the parties, that the complaint was issued during the short period of noncompliance because of a clerical oversight in the Regional Office. The Employer and the AFL, the one charged with the commission of unfair labor practices'and the other with having received illegal assistance, argue that the General Counsel's error is insufficient reason to burden them with the necessity of defending themselves anew in a second trial, in the event that the General Counsel should issue and attempt to proceed upon a later complaint. This argument may prop- erly be addressed only to the General Counsel, because the issuance and prosecution of complaints are committed by Section 3 (d) of the Act solely to his discretion. We therefore express no opinion on that contention here. The Independent's opposition to the motion rests on the contention that the complaint is not subject to dismissal on the ground of non- compliance. As the charging union was admittedly not in compliance when the complaint was issued, the argument is without merit. See N. L. B. B. v. Highland Park Manufactwring Company, 341 U. S. 322. In any event, the Independent's response is irrelevant to the issue now before us. Accordingly, we hereby grant the General Counsel's motion to the extent that it requests leave to withdraw the complaint. To the ex- tent that the motion requests that the Board nOw determine the Gen- eral Counsel's authority to issue a new complaint, it must be denied. We do not here pass upon the General Counsel's power under the Act to issue a new complaint in this situation. Nor, by our decision here, are we to be taken as expressing any opinion upon the advisability of the General Counsel's exercising his independent statutory discretion by proceeding or not proceeding anew. 2. In its response to the notice to show cause, the AFL requests that, regardless of the disposition of the General Counsel's motion, the issues raised by its objection to election in Case No. 2-RC-1839 be decided now. Pending the General Counsel's final disposition of the charge, we shall, in accordance with past Board policy, defer all other action in the representation proceeding.