856 F.2d 275 (D.C. Cir. 1988), 86-1540, G.W. Galloway Co. v. N.L.R.B.

Docket Nº:86-1540.
Citation:856 F.2d 275
Case Date:September 09, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 275

856 F.2d 275 (D.C. Cir. 1988)




No. 86-1540.

United States Court of Appeals, District of Columbia Circuit.

September 9, 1988

Page 276

Argued Sept. 18, 1987.

Lee T. Paterson, Los Angeles, Cal., for petitioner.

Michael D. Fox, Attorney, N.L.R.B., of the bar of the District of Columbia Court of Appeals, pro hac vice, by special leave of Court, with whom Robert E. Allen, Associate General Counsel, Elliott Moore, Deputy Associate General Counsel, and Linda Dreeben, Attorney, N.L.R.B., were on the brief, for respondent. Peter Winkler, Attorney, N.L.R.B., Washington, D.C., also entered an appearance for respondent.

Before ROBINSON, STARR and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.


G.W. Galloway Company (Galloway) petitions this court to review and set aside a cease and desist order issued against it by the National Labor Relations Board 1 on the ground that the Board strayed beyond the jurisdictional boundaries set out in Section 10(b) of the National Labor Relations Act. 2 We agree that on the facts of this case the Board overreached, and accordingly we annul the Board's order.


    Local 420 of the International Brotherhood of Teamsters filed an unfair labor practice charge 3 against Galloway, alleging that its firing of Paul Armendariz, an employee, violated Sections 8(a)(1) and (3)

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    of the Act. 4 The charge was typed on a preprinted form supplied by the Board. In the space provided for the specifics of the charge, the union stated that Galloway "discriminatorily discharged Paul Armendariz because of his activities on behalf of Teamsters Local 420 or because of his other protected concerted activities." 5 Printed on the bottom of the form was a statement, appearing on all such forms provided by the Board, that "[b]y the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act." 6 The Board investigated the union's allegation of improper discharge, but it dismissed the charge without filing a complaint concerning the incident.

    During the course of the investigation of the charge, however, the Board became aware of another incident at the Galloway plant that it believed to have been in contravention of Section 8(a)(1). 7 On the day after Armendariz was discharged, approximately 25 Galloway employees, unhappy with wages and benefits, commenced a strike and formed a picket line in front of the plant. When James J. Galloway, the president of the company, arrived at the plant, he indicated to the striking employees that he was willing to discuss their grievances individually, but that he would not meet with them as a group. He also warned that any employee who did not return to work would be terminated and replaced. Faced with this ultimatum, the employees conferred and returned to work. 8

    The Board issued a complaint averring that through the statements made to the strikers, Galloway had impermissibly threatened them with termination for engaging in protected concerted activity in violation of Section 8(a)(1) of the Act. 9 Neither the union nor any of the employees involved in the strike ever filed a charge concerning this incident, nor was the union's charge amended to include it. After a hearing, an administrative law judge dismissed the Board's complaint, concluding that a prerequisite to issuance of a complaint under Section 10(b)--relationship of the allegations in the charge and those in the complaint--was absent in this case. 10

    Without specifically addressing the holding that the charge and the complaint were unrelated, the Board reversed on the ground that the administrative law judge had "failed to consider and apply long standing precedent." 11 Although the Board made oblique reference to a requirement in its case handling manual that the complaint contain only allegations " 'related to the specifications of the charge,' " 12 it claimed that under this precedent the preprinted language in the charge form, stating that the company had engaged in "other acts" of interference with Section 7 rights, was sufficient to allow the Board to institute the complaint. 13 After disposing of this procedural challenge, the Board found that Galloway had violated the Act through the action of its president, and issued an accompanying cease and desist order. 14


    In relevant part Section 10(b) provides:

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    Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board ... shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect.... 15

    The Board concedes that this section obliges it to await a charge before it may initiate an investigation or issue a complaint. 16 It also acknowledges that the mere filing of a charge against a party does not give the Board unlimited power to pursue all possible violations of the Act which that party may have committed. 17 The Board contends, however, that the "other acts" language printed on the Board-supplied charge form is "legally sufficient to support a complaint alleging infringements of Section 8(a)(1) that were not specifically stated in the charge." 18 The Board further asserts that if a factual relationship between the allegations in the charge and those in the complaint is necessary to satisfy the strictures of Section 10(b), that requirement is met in the present case. 19

    We disagree with both of the Board's arguments. The legislative history and judicial interpretation of Section 10(b) make clear that the allegations in the Board's complaint must be " 'related to' " 20 those in the charge. This rules out the thesis that the "other acts" language alone can serve to broaden the permissible scope of a complaint. Moreover, we have searched in vain for the necessary factual relationship between the discharge and the strike. 21


    The bill that eventually became the National Labor Relations Act was introduced by Senator Wagner at the second session of the Seventy-third Congress. 22 It originally contained this language:

    Whenever any member of the Board, or the executive secretary, or any person designated for such purpose by the Board, shall have reason to believe, from information acquired from any source whatsoever, that any person has engaged in or is engaging in any such unfair labor practice, he shall in his discretion issue and cause to be served upon such a person a complaint stating the general nature of the charges in that respect.... 23

    This provision was later amended to confer the power to initiate charges upon the Secretary of Labor alone. 24 Still later in the Seventy-third Congress, a Senate joint resolution

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    gave the Board authority to do so "[w]henever a complaint is made to the Board which causes the Board to believe that any person has engaged in or is engaging in any such unfair labor practice...." 25 None of these versions became law during that session.

    The legislation was reintroduced in the Seventy-fourth Congress, and the Board was again to be empowered to initiate a complaint on its own. 26 The Senate Committee on Education and Labor, however, eliminated the language vesting this authority in the Board. The bill that emerged from Committee read:

    Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board ... shall have power to issue ... a complaint stating the charges in that respect. 27

    The report accompanying the Committee version did not explain the reason for the change. There was no further debate on the issue, and the bill enacted into law contained that language. 28

    Throughout consideration of the legislation in both the Seventy-third and Seventy-fourth Congresses, a number of witnesses testifying at the hearings objected to the broad scope of the Board's power under the earlier drafts of Section 10(b). 29 Criticism suggested that a Board acting as "prosecutor, grand jury, and court" 30 could not actually or in appearance be impartial.


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