San Bernardino and Riverside Cties. District Council

National Labor Relations Board - Board Decisions

Apr 24, 1975

217 N.L.R.B. 506 (N.L.R.B. 1975)

506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
San Bernardino and Riverside Counties District Coun-
rcil of Carpenters (Aurora Modular Industries) and
Jerry D. Turnbough. Case 21-CB-4878
April 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 26, 1974, a hearing in Case
21-CB-4814-4' was held before Administrative Law
Judge David E. Davis.' On March 15, 1974, prior to
the issuance of the Administrative Law Judge's Deci-
sion in Case 21-CB-4814-4, the General Counsel filed
a motion to reopen the hearing in Case
21-CB-4814-4 and to consolidate it with this case.3
The basis of the General Counsel's motion to consoli-
date these cases and reopen the hearing was that this
case involves the identical individuals and factual situa-
tion as does Case 21-CB-4814-4.
On March 18, 1974, Administrative Law Judge
Davis denied the General Counsel's motion on the
grounds that the General Counsel was merely seeking
to add a new respondent, the District Council, and that
the General Counsel did not aver that a new hearing is
necessary to adduce newly discovered evidence or evi-
dence not available at the time of the hearing. On
March 26, 1974, the Administrative Law Judge issued
his Decision in Case 21-CB-4814-4 in which he dis-
missed the complaint against the Local in its entirety.
Thereafter, the Respondent Council filed a motion to
dismiss in this case on the grounds that the matters set
forth in the complaint therein were fully litigated in
Case 21-CB-4814-4. On April 8, 1974, the General
Counsel filed an opposition to the Respondent District
Council's motion to dismiss.
On April 9, 1974, Administrative Law Judge Davis
issued an order, attached hereto as an appendix, dis-
missing the complaint against the District Council in
this case in its entirety. In so ruling the Administrative
Law Judge noted that, when it appeared at the hearing
in Case 21-CB-4814-4 that the District Council rather
than the Local may have been involved in some of the
alleged unfair labor practices, the General Counsel in-
sisted his evidence would show the,Local did commit
all the alleged unfair labor practices; that the General
Counsel did not seek to add the District Council as a
I Local Union No. 1959, United Brotherhood of Carpenters and Joiners
ofAmerica (Aurora Modular Industries), 217 NLRB 508, issued this day.
2 The complaint in Case 21-CB-4814-4 alleged that Respondent Local
Union No. 1959 (hereinafter the Local) had engaged in certain violations
of Sec. 8(b)(1)(B) of the Act.
3 Complaint issued in Case 21-CB-4878 on March 12, 1974, pursuant to
a charge filed on March 4, 1974, against Respondent, San Bernardino and
Riverside Counties District Council of Carpenters (hereinafter District
Council)
party or seek postponement of the hearing to effectuate
a charge and complaint against the District Council;
and, finally, that when the General Counsel sought to
consolidate the cases and reopen the hearing he
conceded that the identical individuals and factual
situation were involved. The Administrative Law
Judge found that the "failure to amend and consolidate
the proceedings prior to the close of the hearing repre-
sents a failure to afford due process to the Respond-
ents," since due diligence would have resulted in the
issues being tried in one hearing. He concluded that the
General Counsel, by attempting to litigate this case in
a hearing de novo, is seeking a third bite at the "cherry"
which he could not in good conscience permit. There-
after, the General Counsel filed a request for review of
the Administrative Law Judge's order granting Re-
spondent's motion to dismiss and the Respondent Dis-
trict Council filed an opposition thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
As noted supra, the Administrative Law Judge dis-
missed the complaint. Subsequently, as we indicated in
the companion case herein (217 NLRB 508), the
Supreme Court issued its decision in Florida Power &
Light Co. v. Inte,national Brotherhood of Electrical
Workers, Local 641, 642, 759, 820 and 1263, 417 U.S.
790 (1974). The Board has recently in Chicago Typo-
graphical Union No. 16 (Hammond Publishers, Inc.),
216 NLRB No. 149 (1975), set forth its understanding
of that Supreme Court decision. Consequently, we find
it unnecessary to pass on the rationale utilized by the
Administrative Law Judge for dismissal of the com-
plaint herein.
As the General Counsel in effect conceded, and the
Administrative Law Judge found, this case involves for
the most part the same individuals and factual situation
as does 217 NLRB 508. The complaint herein at-
tempts to place the liability for Turnbough's fine
against the District Council. However, even if such
liability is established it does not change the facts of this
case. In our opinion, it would therefore serve no useful
purpose to consolidate these cases and reopen the re-
cord in 217 NLRB 508, or remand this case for
hearing.
On July 23, 1973, the Local which had a collective-
bargaining agreement with the Company engaged in a
strike which lasted until July 26, 1973. During the
strike Turnbough, a supervisor and union member,
crossed the picket line to work. A member of the Local
filed a charge against Turnbough in which he alleged
that Turnbough caused dissension among, the union
members, worked behind the picket line, and violated
the obligation. On November 19, 1973, the District
217 NLRB No. 81
SAN BERNARDINO AND RIVERSIDE CTIES. DISTRICT COUNCIL
Council fined Turnbough for the violations set forth in
the local member 's charge . Prior to the strike Turn-
bough functioned as a supervisor only. During the
strike he, by his own admission , did 50 percent rank-
and-file struck work and 50 percent supervisory work.
Accordingly , for the reasons set forth in the compan-
ion case, 217 NLRB 508 (issued this day), we shall
dismiss the complaint in its entirety. 'I
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders the complaint herein be, and it
hereby is, dismissed in its entirety.
4 Member Fanning concurs in the result , but only for the reasons set forth
in his concurrence in the companion case, 217 NLRB 508.
APPENDIX
On February 26, 1974 , a hearing was conducted
before Administrative Law Judge David E . Davis in
Case 21-CB-4814-4. At the outset of the hearing, in a
preliminary discussion with counsel for the General
Counsel and counsel for Respondent Local No. 1959,
it became apparent that San Bernardino and Riverside
Counties District Council - of Carpenters , Respondent
herein, rather than Local No. 1959 may have been
involved in some of the unfair labor practices alleged
in the complaint in Case 21-CB-48114-4. The General
Counsel at that point announced on the record that the
evidence would show that Respondent Union Local
507
No. 1959 did in fact commit all the alleged unfair labor
practices.
During the course of that hearing counsel for Re-
spondent Union herein filed a special and limited ap-
pearance . Thereafter, counsel for the General Counsel
orally amended the complaint in two particulars but
did not then seek to amend the complaint to add Re-
spondent Council as a party nor did he seek a postpone-
ment of the hearing to effectuate a charge and com-
plaint against Respondent Council.
On March 15 , 1974, after the close of the hearing in
Case 21-CB-4814-4, the General Counsel filed a mo-
tion to reopen that hearing and to consolidate it with
the instant proceeding, Case 21-CB-4878 . In support
of that motion , the General Counsel conceded that the
identical individuals and factual situation were in-
volved . As this was plainly apparent during the course
of the hearing , it is my opinion that the failure to amend
and consolidate the proceedings prior to the close of the
hearing represents a failure to afford due process to the
Respondents. Clearly, the exercise of reasonable dili-
gence would have resulted in the issues being tried in
one proceeding rather than permitting the original pro-
ceeding to terminate and to then follow with an attempt
to relitigate all the facts and circumstances in a new
proceeding.
It seems to me that the General Counsel by attempt-
ing to litigate Case 21-CB-4878 in a hearing de novo
is seeking a third bite at the "cherry." I cannot in good
conscience permit this.
Accordingly , Respondent Council's motion is
granted and the complaint in Case 21 -CB-4878 is
hereby dismissed in its entirety.