National Labor Relations Board v. IBS Mfg. Co.

• Decision Date: 26 March 1954
• Docket Number: No. 14545.,14545.
• Citation: 210 F.2d 634
• Parties: NATIONAL LABOR RELATIONS BOARD v. I. B. S. MFG. CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

210 F.2d 634 (1954)

NATIONAL LABOR RELATIONS BOARD v. I. B. S. MFG. CO. et al.

No. 14545.

United States Court of Appeals Fifth Circuit.

February 23, 1954.

Rehearing Denied March 26, 1954.

A. Norman Somers, Asst. Gen. Counsel, N. L. R. B., David P. Findling, Asso. Gen. Counsel, N. L. R. B., Frederick U. Reel, Atty., N. L. R. B., George J. Bott, General Counsel, N. L. R. B., Louis Schwartz, Washington, D. C., for petitioner.

Leslie Darden, New Albany, Miss., Alexander E. Wilson, Jr., Atlanta, Ga., G. Maynard Smith (of Wilson, Branch & Smith), Atlanta, Ga., Fred B. Smith, Ripley, Miss., for respondents.

Before HUTCHESON, Chief Judge, and HOLMES and RIVES, Circuit Judges.

HUTCHESON, Chief Judge.

This is not the usual proceeding for enforcement of an order of the Labor Board in which examiner and board, two souls with but a single thought, two hearts that beat as one, in agreement upon findings of fact and conclusions of law, present a united front against a respondent who has been found guilty of unfair labor practices and ordered to cease and desist and take affirmative action accordingly.

On the contrary, it is one in which the examiner, in his comprehensive, indeed exhaustive, 80 page intermediate report, finds that the general counsel has not borne his burden of establishing that the respondents have engaged in unfair labor practices, within the meaning of Sec. 8(a) (1) and (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(a) (1, 5), as charged, to-wit: that it (1) had unlawfully refused to bargain in good faith; and (2) had interfered with and threatened its employees; and recommends that the complaint be dismissed in its entirety.

As might be expected then, the respondents, except as to subordinate points, on which they differ with the examiner, are here putting the examiner forward as a most wise and upright judge, indeed as a Daniel come to judgment, while casting the board in the role of a darkener of counsel when, declaring that it affirms the examiner's findings of fact, it rejects his conclusion and recommendation that no case was made out and that the complaint should be dismissed.

The board, in its turn, vigorously supporting the position it takes, that wherever examiner and board differ, the examiner is wrong, the board right, insists that the fact findings of the examiner do not support his conclusions.

The respondents as vigorously insist that it is not the examiner but the board which is wrong.

Matters standing thus, it is evident that a brief statement of the issues joined and the facts found and an equally brief statement of the principles which control the decision of this case are in order.

These proceedings began with a charge filed May 12, 1949, charging respondents with the commission of unfair labor practices in violation of Sec. 8(a) (1) and (3) of the Act, in this that they have discriminatorily discharged some thirty named employees. This was followed by an amended charge filed August 5, 1949, charging violations of Sec. 8(a), subsections (1), (3) and (5) of the Act, in this that they have discriminatorily discharged the same thirty employees and two others, and have failed to bargain collectively, beginning October 4, 1946, and thereafter to date. A second amended charge filed Feb. 1, 1950, repeated the same charges, and a third amendment filed Oct. 30, 1950, repeated the same charges as violations of Sec. 8(a) (1) and (5), and dropped the reference to subsection (3).

The general counsel, completely rejecting the 8(a) (1) and (3) charges, dealing with the discharge of employees, on October 31, 1950 filed a complaint in which he adopted the 8(a) (5) charge, the refusal to bargain, and, in addition, alleged that the respondents' acts in this respect constituted unfair labor practices affecting commerce, within the meaning of Sec. 8(a) (1) and (5). Nowhere in the charges or in the complaint was there any charge as to interrogation and coercion of its employees in respect of conversations between Winkler and Herrin and between Megginson and Caldwell. They were, however, dealt with by the examiner, who rejected them as unfair labor practices, and by the board, who found them to be such.

Among the matters alleged in the complaint, as constituting a breach of respondents' refusal to bargain, was that respondents unilaterally changed the working conditions of employees without consulting or conferring with the union.

The respondents moved to strike all references to matters occurring prior to Feb. 5, 1949, on the ground that Sec. 10 (b) of the Act specifically prohibited the issuance of a complaint based upon any unfair labor practices occurring more than six months prior to the date of the filing of the amended charge on August 5, 1949, on which the complaint was based, and in which the charge under Section 8(a) (5) was first made.

The cause referred to the examiner and respondents' motion to strike denied, there was a full hearing on all the matters in issue. In the course of it the examiner agreed with the general counsel and disagreed with the respondents, that the cut off date for the six months' period back of which no matters could be charged as unfair labor practices was not August 5, but May 9, 1949. He also agreed with the general counsel that evidence of events antedating the six months' period could properly be offered and considered as background evidence in determining whether respondents had violated the act. He, therefore, permitted a full hearing on all matters occurring after the election in 1946, at which the union was selected as bargaining agent.

When it came to his findings, however, though he found that the evidence would support a finding of refusal to bargain on the part of respondents during the six bargaining conferences which preceded the seventh and last, held July 26, 1949, he found further: because no charge was made until May 12, 1949, that, on the basis of events occurring within six months prior or subsequent thereto, no such finding would be justified; and that this was particularly so as to what transpired at the last conference on July 26, 1949, when it was not the action of respondents but that of the union in refusing to continue them which brought the negotiations to an end.

With respect to the charge that respondents instituted unilateral changes in production requirements in January, 1949, though he considered this action within the limitation period, respondents to the contrary notwithstanding, the examiner found that, under all the circumstances, this was not really an unfair labor practice and that in any event it would not effectuate the purposes of the act to base a finding of refusal to bargain on this action of the company.

As to the conversations between Megginson and Caldwell and Winkler and Herrin, which, though not set out in either charge or complaint, the examiner considered, and the board relied on, as an unfair labor practice, the examiner found that neither of these constituted interference or coercion or were otherwise in violation of the act.

The board, in its opinion,¹ agreeing with the examiner's rulings as to the six months' limitation period and claiming to agree with its findings of fact but disagreeing with his conclusions that respondents' actions at the July conference would not support a finding or refusal to bargain, specifically found that they did, basing this finding in part on respondents' demand that the union furnish a bond which the board found was an improper condition and in part upon the background evidence.

As to the charge that respondents had instituted unilateral changes in conditions of employment, the board found that this, considered in connection with the background evidence, constituted a refusal to bargain, while, as to the conversations just above referred to, the board found them interfering, coercive, and otherwise violative of the act.

Standing on its opinion and supporting it by brief and argument, the board is here insisting that in making these findings and conclusions, it is right, while respondents as vigorously insist that the board is wrong, the examiner right.

We take up these contentions in their order, to say that we agree with the respondents and disagree with examiner and board, that in respect to the charge of refusal to bargain, in violation of 8(a) (5), first made in August, 1949, the cut off date was not May 9, but August 5, 1949.

This is so because that was the first date on which a charge of refusal to bargain was made, and, under settled principles governing the construction of statutes of limitation,² Sec. 10(b) of the act, providing that no complaint shall issue based on any unfair labor practice which occurred more than six months prior to the filing of the charge with the board and the service of a copy thereof, fixes this as the cut off date.

None of the cases cited by the board, particularly none of those decided by this court, are in any manner contrary to this view. It is one thing to hold, as we have done, that it is admissible to add two or three names to the list of dischargees after the period, or to otherwise amplify and expand a charge by the addition of details in line with its general substance. It is quite another to hold that an entirely new and different cause of action based on matters occurring more than six months before the cut off date for the filing of the charge may be asserted.

While, therefore, we agree with the board rather than with the examiner that unilateral changes in production requirements constituted unfair labor practices in the nature of a refusal to bargain, we agree with respondents, that these acts occurring, as they did, more than six months before August 5, 1949, may not be made the basis of a finding of unfair labor practice, and with the examiner, though not for the reasons that he gave, that these matters may not be made the basis of an unfair labor practice finding.

As to the conversation...