Old Colony Box Co.

National Labor Relations Board - Board Decisions

Feb 28, 1949

81 N.L.R.B. 1025 (N.L.R.B. 1949)

In the Matter of OLD COLONY Box COMPANY and UNITED PAPER-
WORKERS OF AMERICA-CIO
Case No. 5-C-2166.Decided February 28, 1949
RULING
AND
ORDER
A charge in the above-entitled case was filed on August 14, 1946.
The complaint, alleging that the Respondent had violated Section 8
(1) and 8 (3) of the Act, was issued on July 12, 1948. Copies of the
complaint, the charge, and notice of hearing were served upon the
Respondent and United Paperworkers of AmErica, CIO, on July
12, 1948.
Thereafter, a hearing was held from August 3 to August 6, 1948,
inclusive, before Trial Examiner John Lewis. At the hearing, the
Respondent moved to dismiss the complaint on the ground that it
was issued contrary to the limitation of Section 10 (b) of the amended
Act. In opposition to this motion the General Counsel argued : (1)
that Section 10 (b) is not applicable to cases in which a charge had
been filed before August 22, 1947, the effective date of the amended
Act; and (2) that the Respondent was actually put on notice of the
specific nature of the charges against it on August 26, 1946, by a
letter from the Regional Director for the Fifth Region, The Trial
Examiner reserved ruling on the motion.
On October 12, 1948, without otherwise considering the merits of
the case, the Trial Examiner in an "Order Dismissing Complaint"
granted the Respondent's motion to dismiss, finding that there had
been a failure to comply with the service requirements of Section 10
(b) in that the record contained no evidence of service of a copy of
the charge upon the Respondent before or within 6 months after
August 22, 1947, the effective date of the amended Act. He held
that Section 10 (b) applied prospectively to cases in which the charge
was filed before and the complaint was issued after the amendments
to the Act became effective. The General Counsel thereupon filed
with the Trial Examiner on October 18, 1948, a "Motion to Reopen
81 N. L It. B., No. 157.
1025
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Record and Introduce Further Evidence," alleging that on June 30,
1947, the Regional Director for the Fifth Region, by registered mail,
had served upon the Respondent a copy of the charge and that the
return receipt, dated July 1, 1947, had been received by that office. At
the same time, the General Counsel appealed to the Board from the
Trial Examiner's ruling and moved the Board to direct the Trial
Examiner to reopen the record for the purpose of receiving the above
evidence of service. By Order, dated October 29, 1948, the Trial Ex-
aminer denied the motion of the General Counsel to reopen the record,
holding that the evidence of timely service was available to the General
Counsel and could have been introduced at the time of the hearing.
The Trial Examiner held that the General Counsel's mistake as to
the applicable law did not warrant the reopening of the record to
introduce evidence of such service. Subsequently, on November 12,
1948, the General Counsel, without explanation, filed with the Board
a withdrawal of his appeal and motion to reopen the record.
The Board has duly considered the matter, including the Trial
Examiner's "Order Dismissing Complaint," his further order denying
the General Counsel's motion to reopen the record, the General Coun-
rel's appeal from the Trial Examiner's ruling, the General Counsel's
motion to reopen the record and adduce further testimony, and his
requested withdrawal of the appeal. Inasmuch as we are of the opin-
ion that the policies of the Act would best be effectuated by a deter-
mination of this appeal on its merits, we hereby deny permission to
the General Counsel to withdraw his appeal and motion to reopen the
record.
RULING ON MOTION
We turn now to consideration of the General Counsel's motion to
reopen the record.
Section 10 (b) of the amended Act provides :
. .. no complaint shall issue based upon any unfair labor prac-
tice occurring more than 6 months prior to the filing of the charge
with the Board and the service of a copy thereof upon the person
against whom such charge is made .. .
The Board has held in a number of cases that the limiting language
of this section should not be given retroactive effect. ' The complaints
in those cases, however, were issued before or within 6 months after
August 22, 1947, the effective date of the amended Act. Filing and
i Matter of Detroit Gasket and Manufacturing Company, 78 N L it. B 670, Matter of
Barton Brass Works, 78 N . L it. B 431 ; Matter of Bewley Mills , 77 N L. R B 774;
Matter of Briggs Manufacturing Company, 75 N. L it. B. 569 ; Matter of Union Products
Company, 75 N. L. it. B. 591.
OLD COLONY BOX COMPANY 1027
service of copies of the charges were accomplished within that period.
In several cases, where the complaints were issued more than 6 months
after August 22, 1947, the Board has held that Section 10 (b) imposes
no limitation upon the issuance of complaints based on charges filed
and served within 6 months of that date.' Recently, the question of
service apart from the filing of the charges was specifically presented
to the Board in a case where the charges were filed before August 22,
1947, but certain individual respondents were not served with copies of
the charges until the complaint was issued on August 31, 1948. In that
case, applying the converse of its previous interpretation of the limi-
tations contained in Section 10 (b), the Board affirmed the Trial Exam-
iner's ruling dismissing the complaint as to those respondents.3 Stated
somewhat more broadly, these rulings mean that in all cases involving
a complaint issued after August 22, 1947, based upon a charge alleg-
ing the commission of unfair labor practices before that date, the
Board requires that the charge must have been filed and a copy thereof
actually served upon the party against whom it was made within 6
months after the effective date of the amended Act.
In view of the General Counsel's failure at the hearing to prove
actual service within this period, the Trial Examiner's ruling of
October 12, 1948, was proper when made. Subsequently, however, on
October 18, 1948, the General Counsel, in his motion to reopen the
record and adduce further evidence, alleged that the Respondent, in
fact, was served with a copy of the charge on June 30, 1947, prior to
the effective date of the amended Act and well within the requirement
of Section 10 (b) of the Act, as amended. The question therefore
presented to the Board at this time pertains particularly to proof of
service of a copy of the charge rather than to the question of service
itself. Presumably, evidence of actual service was not introduced at
the hearing because the General Counsel interpreted Section 10 (b)
as inapplicable to this case. As indicated above, this interpretation
was erroneous. We are of the opinion that where, as here, the alleged
unfair labor practices occurred before August 22, 1947, the complaint
having issued after that date, and the Respondent contends at the
hearing that it did not receive a copy of the charge until more than
6 months had elapsed from that date, evidence of such service is a
proper part of the record. We shall henceforth require, as a matter
of Board procedure, that acceptable evidence of timely service of a
2 Matter of Itasca Cotton Manufacturing Company, 79 N L R B. 1442 ; Matter of
Eieettic Auto-Late Company, 80 N. L R. B 1601, Matter of Olin Industries. Inc,
Winchester Repeating Arms Company Division , Case No. 1-C-3107, Order dated June 1,
1948.
' Matter of California Metal Trades Association , Cases Nos . 20-C-1721 et seq Order
dated November 3, 1948.
829595-50-vol 81-66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of the charge be introduced into the record at the hearing. This
requirement extends to all future cases in which hearings have begun
and have not yet been closed as of the date of this Ruling and Order.
The Trial Examiner, relying upon the general rule that a case will
not be reopened after the hearing is closed unless it appears that the
evidence was not available at the time of the hearing or unless some
other sufficient explanation is given for the failure to introduce such
evidence,' denied the General Counsel's motion to reopen the record.
At the time of the hearing, however, the effect of Section 10 (b), al-
though discussed in several decisions, was still a question which had
not been thoroughly explored. The Board had not yet specifically
ruled on the effect of the filing of a charge before August 22, 1947, or
on the question of service apart from the filing of such charge. More-
over, the Board has customarily applied a liberal rule of construction
to the procedural requirement of proof of service.' Under these
circumstances, we are of the opinion that the General Counsel should
be given an opportunity to introduce into the record the evidence of
timely service to which he refers in his motion. We shall therefore
grant the General Counsel's motion to reopen the record for the limited
purpose of introducing evidence of timely service of a copy of the
charge upon the Respondent within the meaning of this opinion.
ORDER
IT Is HEREBY ORDERED that the above-entitled case be, and it hereby
is, remanded to the Trial Examiner, and
IT IS FURTHER ORDERED that the Trial Examiner be, and he hereby is,
directed to reopen the record for the limited purpose of receiving
the aforesaid evidence of service and, upon the introduction of such
evidence in the record, to prepare and issue an Intermediate Report,
consistent with our ruling herein.
4 Matter of Basic Vegetable Products , Inc, 75 N . L R B 815 ; Matter of Vogue -Wright
Studios, Inc , 76 N. L. if. B 111 ; Matter of Wyman-Gordon Company , 62 N. L R B 561.
Section 203 85 of the Board 's Rules and Regulations provides : ". . . Failure to make
proof of service does not affect the validity of the service." See, also , to the same effect,
Rule 4 ( g), Rules of Civil Procedure for the District Courts of the U S., and see Rule
4 (h), ibid , authorizing amendments to proof of service at any time upon equitable grounds.