Field Bridge Associates, 322 (1992)
Field Bridge Associates and Local 32B-32J, Service Employees International Union, AFL-CIO Rachel Bridge Corp. and Local 32B-32J, Service
Employees International Union, AFL-CIO.
Cases 29-CA-13582, 29-CA-13788, 29-CA- 13720 (formerly 2-CA-23014), and 29-CA- 14230
February 14, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH
On August 22, 1990, Administrative Law Judge Raymond P. Green issued the attached decision. The General Counsel and the Union filed exceptions and supporting briefs. Respondent Field Bridge filed cross-exceptions and a supporting brief. Respondents Field Bridge and Rachel Bridge filed a brief in opposition to the exceptions. The Union filed an answering brief to Respondent Field Bridge's cross-exceptions. Thereafter, the Respondent filed a motion to reopen the record, and the General Counsel and the Union filed statements in opposition.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions, to deny the Respondent Field Bridge's motion to reopen the record,1 and to adopt the recommended Order.
We adopt the judge's finding that neither Field Bridge nor Rachel Bridge assumed the existing Realty Advisory Board on Labor Relations (RAB) contract. We find no merit in the contentions of the General Counsel and the Union that the New York State courts' contrary findings are binding upon us.
Pursuant to the New York Civil Practice Law and Rules, Field Bridge sought to quash arbitration proceedings instituted by the Union concerning incidents which occurred prior to Field Bridge's assuming ownership of Ebbet's Field. In an oral ruling (there was no written opinion), Judge Ira Grammerman of the Supreme Court of the State of New York found that Field Bridge assumed the RAB agreement. The Court ob-served that ''there were [sic] some administrative foulup, in that the document under which you [Field Bridge] had specifically assumed the agreement was never . . . signed or not presented because of what appears to be a rather complicating closing. And somebody just missed the boat.'' The Appellate Division affirmed, and the court of appeals refused permission to appeal. In a separate proceeding, Judge Grammerman's ruling was found to be binding on Rachel Bridge.
The Board adheres to the general rule that if the Government was not a party to the prior private litigation, it is not barred from litigating an issue involving enforcement of Federal law which the private plaintiff has litigated unsuccessfully. Allbritton Communications, 271 NLRB 201, 202 fn. 4 and sources cited (1984), enfd. 766 F.2d 812 (3d Cir. 1985). Underlying this rule is the long-recognized principle that ''Congress has entrusted to the Board exclusively the prosecution of the proceeding by its own complaint, the conduct of the hearing, the adjudication and the granting of appropriate relief. The Board as a public agency acting in the public interest, not any private person or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions to interstate commerce.'' Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265 (1940). See also National Licorice Co. v. NLRB, 309 U.S. 350, 362-364 (1940); Section 10(a) of the Act (the Board's power to prevent unfair labor practices ''shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . .''). Thus, the Board, as a public agency asserting public rights should not be collaterally estopped by the resolution of private claims asserted by private parties. A number of
1 The motion to reopen the record cites a July 9, 1991 article in New York Newsday (Brooklyn Edition) in which Shop Steward Oakley Harvey stated that: ''Maintenance workers [at Ebbet's Field] walked off the job in support of security guards who went on strike to protest management's refusal to pay benefits . . . .'' Respondent Field Bridge argues that had Harvey made this statement at the hearing and been credited by the judge, the judge would have found that the strike at Ebbet's Field was for the unlawful purpose of forcing Field Bridge to recognize and bargain with the Union for a unit of guards and nonguards.
The General Counsel and the Union argue that because the Respondent failed to call or subpoena Harvey to testify at the hearing, this newly proffered evidence does not satisfy the Board's Rules and Regulations, Sec. 102.48(d)(1), which states, in pertinent part, that:
A motion to reopen the record shall state briefly the additional evidence sought to be adduced, why it was not presented previously, and that, if adduced and credited, it would require a different result. Only newly discovered evidence, evidence which has become available only since the close of the hearing, or evidence which the Board believes should have been taken at the hearing will be taken at any further hearing.
We find merit in the General Counsel's and the Union's contentions. The evidence that the Respondent proposes to offer does not satisfy the Board's Rules. The Respondent failed to secure Harvey's testimony at the hearing in presenting its affirmative defense. A respondent must exercise due diligence in gathering the evidence for presentation of its case. See A. N. Electric Corp., 276 NLRB 887
fn. 11, 897 (1985). Further, we are not presented here with new evidence indicating that a key witness may have committed perjury in testifying regarding a material fact. Rather, the proffered evidence bears only on the credibility of witnesses and as such does not warrant reopening the record. Compare Inland Container Corp., 273 NLRB 1856, 1857 (1985).
circuit courts agree. The Fourth Circuit Court of Appeals has held that the Board's primary and exclusive jurisdiction to determine unfair labor practices renders Board decisions dispositive where they conflict with determinations in other forums. Peninsula Shipbuilders' Assn. v. NLRB, 663 F.2d 488, 492 (4th Cir. 1981). Similarly, the Fifth Circuit Court of Appeals has held that the Board's determination of a work assignment dispute took precedence over a district court's ruling in a Section 301 arbitration proceeding that conflicted with the Board's determination. New Orleans Typographical Union No. 17 v. NLRB, 368
F.2d 755, 767 (5th Cir. 1966). And the Eighth Circuit Court of Appeals reaffirmed the Board's jurisdictional competence to determine matters properly within its statutorily defined sphere, without being constrained to grant res judicata or collateral estoppel effect to Federal District Court judgments rendered in closely related Section 301 proceedings. NLRB v. Huttig Sash & Door Co., 377 F.2d 964, 970 (8th Cir. 1967).2 In this case, the Board was not a party to the New York State Court proceedings. Accordingly, we decline to give them a preclusive effect.
We turn now to the merits of the General Counsel's contention that Respondents assumed the RAB contract. We agree with the judge that they did not. We have consistently exercised restraint in applying an assumption-of-the-contract theory. We require clear and convincing evidence of consent, either actual or constructive, before we will find that an assumption of the contract occurred. See E G & G Florida, Inc., 279 NLRB 444, 453 (1986); All State Factors, 205 NLRB 1122, 1127 (1973). Here the evidence is ambiguous. Although the seller of the two apartment complexes appears to have understood that the Respondents would assume any labor agreements, and the contract of sale intimated as much, unmistakable written mani-
festation of the Respondents' intent with respect to the existing RAB contract is lacking. Further, the Respondents did not take the steps necessary under the RAB contract's own terms to adopt it once the sale was consummated. Thereafter, the Union engaged in conduct inconsistent with any understanding that the Respondents had assumed the existing RAB contract. Thus, the Union sought to bind the new owners to the Independent Apartment House Agreement or to negotiate an entirely new agreement. Under these circumstances, like the judge, we find that the Respondents and the Union3 did not actually or constructively assume the existing RAB contract.
The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Field Bridge Associates and Rachel Bridge Corp., Brooklyn, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order.
2 We are aware that our failure to afford collateral estoppel effect to other state and Federal proceedings in certain circumstances is not without its critics. See NLRB v. Donna-Lee Sportswear Co., 836
F.2d 31 (1st Cir. 1987). Donna-Lee is distinguishable, however. The relationship between the Board and the Union here is not the same as that which existed in the Donna-Lee case. There the existence of a contract between Donna-Lee and the Union was the essence of the unfair labor practice charge. The issue of assumption of the contract is only one aspect of the unfair labor practices alleged here. The complaint alleged a violation of the Act based on successorship, an area where the Board's judgments under the Act are given particular deference, as well as an assumption of the labor agreement. See Fall River Dyeing Corp. v...
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