Delaware Beverage Co., Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1100 (N.L.R.B. 1984)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eugene M. Tigani, Francis G. Tigani, F. Gregory
Tigani, J. Vincent Tigani, Jr. and the Trustee of
J. Paul Tigani d/b/a Standard Wine & Spirits
Company; Century Wine & Spirits, Inc.; N.K.S.
Distributors, Inc.; Major Distributing Company,
Inc.; Park Distributing Company, Inc.; State
Distributors, Inc.; Wilson Beverage Company;
Harry Jarels, Harry Waldman, Thomas Arm-
strong and Bernard Armstrong d/b/a Delaware
Beverage Company, Inc. and General Teamsters
Local Union No. 326. Cases 4-CA-12835, 4-
CA-12836, 4-CA-12837, 4-CA-12838, 4-CA-
12839, 4-CA-12840, 4-CA-12841, and 4-CA-
12842
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On charges filed on 12 April and 22 December
1982' by General Teamsters Local Union No. 326
(the Union) and duly served on Standard Wine &
Spirits Company et al. (the Respondents) the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 4,
issued a consolidated complaint and notice of hear-
ing on 29 March 1983 alleging that the Respond-
ents had engaged in and were engaging in unfair
labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act.
On 8 April 1983 the Respondents filed an answer
admitting in part and denying in part the allega-
tions of the complaint, submitting an affirmative
defense, and requesting that the complaint be dis-
missed in its entirety. On 25 April 1983 the Region-
al Director for Region 4 issued an amendment to
the consolidated complaint.
Thereafter on 23 May 1983 the Respondents
filed with the Board a Motion for Summary Judg-
ment and a brief in support thereof. The Respond-
ents move the Board for summary judgment be-
cause the alleged unfair labor practices set forth in
the complaint and notice of hearing, as amended,
occurred more than 6 months prior to the filing of
the relevant charge with the Board and the service
of a copy thereof on the Respondents.
On 20 June 1983 counsel for the General Coun-
sel of the National Labor Relations Board filed a
memorandum in opposition to the Respondent's
Motion for Summary Judgment. On 7 July 1983
the Union also filed a memorandum in opposition
to the motion.
' All dates hereinafter refer to 1982 unless otherwise indicated
On 23 June 1983 the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the Respondents' Motion for
Summary Judgment should not be granted.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record, the Board makes the fol-
lowing
Ruling on the Motion for Summary Judgment
On the issue of whether the amended charge is,
in effect, a new charge time-barred by Section
10(b) of the Act, the Respondents contend that the
initial charge filed 12 April was incapable of being
amended on 22 December because all allegations
set forth therein had been resolved on or before 5
June by either dismissal or private settlement. One
portion of the initial charge alleges that the Union
unlawfully refused to comply with its collective-
bargaining obligation to pay the Union a 72-cent-
per-hour pay increase. This allegation was the sub-
ject of a grievance filed by the Union. In a letter of
28 May, the Regional Director informed the parties
that he was administratively deferring further pro-
ceedings on the issue of the 72-cent-pay increase in
accordance with the Board's policy of deferring to
the grievance and arbitration procedures of an ex-
isting bargaining agreement under Collyer Insulated
Wire, 192 NLRB 837 (1971). The Regional Direc-
tor simultaneously dismissed all other allegations in
the 12 April charge as lacking in merit.
The Respondents aver that the parties resolved
the issue of the 72-cent-per-hour pay increase when
they agreed to a new collective-bargaining agree-
ment on 5 June. Since on that date all other allega-
tions in the original charge had been dismissed, the
Respondents contend that there existed no viable
allegation thereafter that could have formed the
basis for an amendment to that charge. Thus, the
Respondents argue, when on 22 December the
Union filed a charge alleging, inter alia, that the
Respondents unlawfully failed to meet a contrac-
tual obligation to pay employees for a Good
Friday holiday on 9 Apri1, 2 it was in fact filing a
new charge time-barred by Section 10(b) of the
Act.
The General Counsel in his statement in opposi-
tion to the Respondents' motion does not dispute
the accuracy of the Respondents' averment that all
allegations in the initial charge had been either re-
solved during contract negotiations or administra-
tively dismissed as without merit by 5 June. To the
2 Other allegations in the 22 December charge were dismissed by the
Regional Director by letter of 11 March 1983
273 NLRB No. 136
STANDARD WINE & SPIRITS CO 1101
contrary, the General Counsel concedes that "all
allegations of the amended charge except that in-
volving the $.72 per hour wage increase were dis-
missed before the amended charge was filed," and
that the parties had arranged for informal settle-
ment of the wage increase dispute before 22 De-
cember. 3 Counsel for the General Counsel argues
solely that, as long as the portion of the charge
concerning the wage increase was "still pending"
on 22 December, there was a charge on file to
which the amendment may relate back.
Under Federal Rules of Civil Procedure 56(b),
the defending party may move for summary judg-
ment, in whole or in part, at any time with or
without supporting affidavits. Federal Rules of
Civil Procedure 56(e) also provides in pertinent
part that:
When a motion for summary judgment is made
and supported as provided in this rule, an ad-
verse party may not rest on the mere allega-
tions or denials of his pleadings, but his re-
sponse, by affidavits, or as otherwise provided
in this rule, must set forth specific facts show-
ing that there is a genuine issue for trial. If he
does not so respond, summary judgment, if ap-
propriate, shall be entered against him.
In their Motion for Summary Judgment, the Re-
spondents set forth facts concerning settlement
with regard to the 72-cent-per-hour wage increase,
the 8-month delay before dismissal of the wage in-
crease portion of the charge, and the dismissal of
all other allegations contained in the original
charge. These facts form the basis of the Respond-
ents' affirmative defense. The General Counsel,
having failed to controvert these facts, has not met
the burden imposed on an adverse party by the
aforementioned rule. 4 In these circumstances, we
3 Our dissenting colleague contends that we have misstated the posi-
tion of the Generla Counsel in this regard The dissent considers as a re-
buttal to the facts stated in the Respondents' pleadings the General Coun-
sel's statement that the Union "may not have felt" that the pay Increase
issue was resolved and that the Union may have been at this point still
"Interested in pursuing the charge" Such interest is demonstrated, the
dissent argues, by the Union's reiteration of its allegation concerning the
pay increase in the amended charge—a practice that the Regional Offices
routinely advise charging parties to perform under Sec 10064 1 of the
NLRB Casehandling Manual (Part One) whenever amending an out-
standing charge To demonstrate the Inadequacy of the General Counsel's
pleadings as an effective rebuttal, we need only cite to the very passage
quoted in the dissent, US Contractors v NLRB, 697 F 2d 695 (5th Or
1983), addressing the function of the Board as a forum for the adjudica-
tion of public, as opposed to pnvate, rights What is germane, in terms of
effectuating the Act's policies, is not whether the Union demonstrated a
continued interest in pursuing the pending charge but whether the unfair
labor practice complained of had been substantially remedied The Gen-
eral Counsel's dismissal letter of 11 March 1983 demonstrates that the
misconduct alleged in the pay increase charge had been so remedied
4 See Western Electric Co., 198 NLRB 623 (1972), Williams v Baltimore
& Ohio Railroad Co, 303 F 2d 323 (6th Cir 1962)
are satisfied that there are no material facts in dis-
pute concerning the timeliness under Section 10(b)
of the Union's 22 December charge that would re-
quire a hearing before an administrative law judge.
Further, we agree with the Respondents that on
22 December when the Union filed its second
charge, there was no longer —or should no longer
have been—a viable charge capable of being
amended. Although the Union did not withdraw
the initial charge and reiterated the wage increase
allegation in the 22 December charge, the Regional
Director ultimately dismissed that allegation on 11
March 1983 on the ground that the Respondents
had substantially remedied any unfair labor prac-
tice conduct in June 1982 by paying the 72-cent in-
crease to the employees, and the General Counsel
has neither alleged nor offered evidence that this
delay in disposition was occasioned by the Region-
al Director's examination of some issue connected
with the charge. However, even though the Re-
gional Director had learned of the settlement dis-
posing of the wage increase dispute in early Octo-
ber, he did not dismiss the charge for another 5
months. Certainly, the original charge should have
been either dismissed or withdrawn well before the
Union sought to amend it. Thus, it should not have
existed on 22 December to be used as the linchpin
for issuing a complaint that was otherwise barred
by Section 10(b).5
Our dissenting colleague argues that our conclu-
sion concerning the disposition of the initial charge
circumscribes the General Counsel's discretion in
determining how to proceed with pending unfair
labor pratice charges. It does not. In his 11 March
1983 letter, appended to the Respondents' motion,
the Regional Director based his refusal to issue a
complaint as to the 72-cent-per-hour wage increase
allegation on his determination that "the Employer
subsequently paid that increase due under the ex-
pired contract, thereby substantially remedying any
unfair labor practice conduct." Thus, the General
Counsel's decision not to proceed with the charge
turned ultimately on one undisputed fact: that the
Respondents agreed in June 1982 to pay the 72-
cent increase retroactively. Once the Regional Di-
rector was notified of this agreement and had the
opportunity to verify its existence, all facts relevant
to the ultimate disposition of this charge were es-
tablished, and the General Counsel does not con-
tend that the charge was the subject of further in-
vestigative proceedings. Under these circum-
stances, given the Regional Director's determina-
5 Having concluded that the original charge could not properly have
been amended at the time the second charge was filed, we find It unnec-
essary to consider the Respondents' alternative argument that the charges
are insufficiently similar to permit the latter to relate back to the former
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to dismiss the charge, we perceive no basis for
concluding that a requirement that he do so
promptly interferes with the General Counsel's dis-
cretion under Section 3(d) of the Act.6
We therefore conclude that further proceedings
with respect to the Respondents' alleged failure to
pay employees holiday pay for Good Friday, 9
April 1982, are precluded by the provisions of Sec-
tion 10(b) of the Act. Therefore, we grant the Re-
spondents' Motion for Summary Judgment.
ORDER
The National Labor Relations Board grants the
Respondents' Motion for Summary Judgment and
orders that the complaint is dismissed in its entire-
ty.
MEMBER ZIMMERMAN, dissenting.
Contrary to my colleagues, I would deny the
Respondents' Motion for Summary Judgment.
Their determination that the General Counsel, in
the person of the Regional Director, was bound by
what they refer to as the "settlement" of the dis-
pute underlying the initial charge in this case con-
travenes longstanding principles of law which dic-
tate the opposite result from that which they have
reached.
Section 3(d) of the Act vests in the General
Counsel exclusive authority to prosecute unfair
labor practices. This authority is not subject to
review by the Board or by the courts.' More spe-
cifically, Section 3(d) precludes Board or court
review of the General Counsel's decisions about
the disposition of unfair labor practice charges.2
Thus, Section 3(d) of the Act plainly gives the
General Counsel broad discretion in determining
whether or not to dismiss a charge. Once, as in the
instant case, a charge has been timely filed, the
General Counsel has virtually unlimited discretion
to proceed on such a charge as he sees fit, 3 and in
the absence of a showing of abuse of that discre-
tion, the Board will not interfere with the General
Counsel's exercise of it. Here, there is no showing
of any abuse of discretion on the part of the Gener-
al Counsel in not dismissing the charge.
The General Counsel was not required or obli-
gated to dismiss the outstanding unfair labor prac-
° We likewise reject the dissent's expansive reading of this ruling as
obligating the General Counsel to defer to the terms of a pnvate settle-
ment agreement. The determination that the June 1982 agreement "sub-
stantially remedied" the charge over the 72-cent pay increase was made
by the Regional Director in the course of his investigation. Had the Re-
gional Director not made such a determination, we would not, of course,
require him to do so on the sole basis of a party's contention that a pn-
vate settlement had taken place.
1 Machinists v. Lubbers, 681 F.2d 598, 602 (9th Cir. 1982).
2 NLRB v. Sean Roebuck & Co., 421 U.S. 132, 138-139 (1975).
a IC & E Bus Lines, 255 NLRB 1022, 1029 (1981); California Pacific
Signs, 233 NLRB 450, 451 (1977).
tice charges as to the 72-cent wage increase, when
he was notified by the Respondents in October
1982 that they and the Union had agreed to a con-
tract the previous June, under the terms of which
the disputed wage increase would be paid retroac-
tively to April. Simply stated, the General Counsel
will only be bound to settlement agreements to
which he is a party. 4 Thus:
The Board . . . acts in the public interest by
enforcing public, not private rights, and "par-
ties cannot by contractual agreement divest
the Board's function to operate in the public
interest." . . . While private parties might con-
clude that it is in their best interest to settle a
charge, the Regional Director could conclude
that the public interest would be better served
by a formal resolution of the dispute and thus
[the Regional Director] would be under a
public duty not to approve the settlement.6
Indeed, here there was no request from the Union
to withdraw the charge. Consequently, the agree-
ment reached by the parties as to the payment of
the 72-cent wage increase in no way curtailed the
General Counsel's discretionary authority over the
disposition of the outstanding unfair labor practice
charges. Accordingly, I conclude that my col-
leagues have erred in finding that the General
Counsel was required to dismiss the unfair labor
practice charges when advised by the Respondents
of the terms of their new contract with the Union.
Finally, I note that my colleagues misstate the
General Counsel's position in this case when they
assert that the General Counsel does not dispute
the accuracy of the Respondents' averment that all
allegations in the initial charge had been either re-
solved during contract negotiations or administra-
tively dismissed. To the contrary, the General
Counsel contends:
The fact that the charge [re the 72-cent in-
crease] was ultimately dismissed rather than
withdrawn suggests that the Union may not
have felt the question of the $.72 increase was
resolved and was still interested in pursuing
this aspect of its charge at the time it filed its
amendment [re holiday pay]. The fact that the
amended charge reiterated the [72-cent] wage
increase allegation strengthens this conclusion.
Thus, far from not disputing the accuracy of the
Respondents' averment, the General Counsel di-
rectly attacks it.
4 U.S. Contractors v. NLRB, 697 F.2d 692, 695 (5th Cir. 1983).
5 Ibid.
STANDARD WINE & SPIRITS CO. 1103
Also, contrary to my colleagues' expansive read-
ing of the Respondents' motion, there is no "set
[ting] forth facts concerning settlement with regard
to the $.72 per hour wage increase." In their brief
in support of their Motion for Summary Judgment,
the Respondents assert that the parties "resolved"
the 72-cent-per-hour issue when they agreed to a
new collective-bargaining agreement incorporating
this increase and the Union withdrew its related
grievance. The Respondents attach to their brief a
copy of a 4 October 1982 letter from the Respond-
ents' attorney to the Regional Office, stating that:
In settlement of the current labor agreement,
the parties resolved this claim and the union
withdrew its grievance for the monies. Ac-
cordingly . . . that part of the dispute was set-
tled by the parties. Thus, there is no need for
further processing of this matter by your office
and the case should be marked closed.
My colleagues assert that once the Regional Di-
rector received this letter from the Respondents
and had an opportunity to verify its contents, all
facts relevant to the ultimate disposition of the
charge were established. I do ,not share my col-
leagues' post facto assessment on this subject, and I
particularly do not substitute it for the discretion-
ary assessment apparently made by the Regional
Director, at the time, that the charge in question
should not yet be dismissed.
However, on 20 December the Union filed an
amended charge, specifically reiterating the alleged
unlawful failure to pay the 72-cent-per-hour wage
increase, and alleging for the first time that the Re-
spondents unlawfully failed to pay Good Friday
holiday pay. It was not until 11 March 1983, based
on his investigation of the amended charge, that
the Regional Director dismissed the allegation of
unlawful failure to pay the 72-cent-per-hour wage
increase. In any event, less than 3 months after the
Respondents informed the Regional Director that
the issue involving the wage increase had been re-
solved, the Union reiterated its allegation of unlaw-
ful activity in this regard. Thus, even viewing these
facts in the light most favorable to the Respond-
ents, I cannot agree with my colleagues that the
pleadings themselves establish that the General
Counsel abused his discretion. Accordingly, I find
that this matter is not suitable for summary judg-
ment.
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