Drug Plastics & Glass Co., Inc. v. N.L.R.B.

• Decision Date: 15 November 1994
• Docket Number: No. 93-1013,93-1013
• Citation: 30 F.3d 169
• Parties: 146 L.R.R.M. (BNA) 3025, 308 U.S.App.D.C. 107, 128 Lab.Cas. P 11,155 DRUG PLASTICS & GLASS CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 169

30 F.3d 169

146 L.R.R.M. (BNA) 3025, 308 U.S.App.D.C. 107,

128 Lab.Cas. P 11,155

DRUG PLASTICS & GLASS CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

No. 93-1013.

United States Court of Appeals District of Columbia Circuit.

Argued May 9, 1994.

Decided Aug. 5, 1994.

Suggestion for Rehearing In Banc Dismissed Nov. 15, 1994.

Sentelle, Circuit Judge, filed dissenting opinion.

Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Aaron C.F. Finkbiner, III, Philadelphia, PA, argued the cause for petitioner. Also appearing on the briefs was Paul D. Snitzer, Philadelphia, PA. Frank J. Eisenhart, Washington, DC, entered an appearance.

David S. Habenstreit, Attorney, National Labor Relations Board, Washington, DC, argued the cause for respondent. Also appearing on the brief were Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, Linda Dreeben, Supervisory Atty., and Deborah E. Shrager, Attorney, National Labor Relations Board, Washington, DC.

Before: MIKVA, Chief Judge, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge MIKVA.

Dissenting opinion filed by Circuit Judge SENTELLE.

MIKVA, Chief Judge:

An employer challenges an order of the National Labor Relations Board ("Board") finding that the employer committed unfair labor practices. Petitioner alleges that the General Counsel's complaint exceeded the scope of the allegations contained in the Union's charge, and that the allegations in the complaint were therefore time-barred under Sec. 10(b) of the National Labor Relations Act ("NLRA"). We think a "significant factual relationship" exists between the charged conduct and the additional conduct alleged in the complaint. We therefore deny the petition for review and enforce the Board's order in full.

I. BACKGROUND

Drug Plastics & Glass Co., Inc. ("Drug Plastics"), a manufacturer of plastic bottles and other containers in Boyertown, Pennsylvania, was the subject of an incipient (and unsuccessful) union organizing campaign in early 1991. On July 15, 1991, the union, United Rubber, Cork, Linoleum and Plastic Workers of America, District No. 1 ("Union"), filed an unfair labor practice charge with the Board. That charge read as follows:

The above named employer unjustly terminated Allen Rich Matthews because of his Union activities and support of the Union effort in the above named plant.

Allen Rich Matthews was discharged on or around April 26, 1991.

Pursuant to the charge, the Board's General Counsel conducted an investigation. On September 30, 1991, the General Counsel issued a complaint, alleging violations of NLRA Secs. 8(a)(3) and 8(a)(1), 29 U.S.C. Secs. 158(a)(3), (1), in the discharge of Allen Matthews, and also alleging Sec. 8(a)(1) violations for other conduct designed to discourage the organizing campaign. The relevant sections of the NLRA read:

(a) It shall be an unfair labor practice for an employer--

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [NLRA Sec. 7, 29 U.S.C. Sec. 157];

....

(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization....

29 U.S.C. Secs. 158(a)(1), (3).

Specifically, the complaint alleged that (1) Drug Plastic's Vice President, Glenn Forte, had solicited the employees' complaints and grievances, informed them that he knew there was talk about a union, and promised them improved terms and conditions of employment; (2) Assistant Vice President John Rogers had threatened employees with reprisals if they signed union authorization cards; (3) President Fred Beisicker had threatened employees with plant closure in the event of unionization; (4) Supervisor Tim Matthews had also threatened employees with plant closure; (5) Supervisor Bill Mellen had told an employee that employees' union activities and discussions were being monitored and had threatened to discharge that employee if he engaged in union activity; (6) the company had instituted a wage increase; and (7) the company had discharged the employee, Allen Matthews, because of his support for the Union, in violation of Secs. 8(a)(3) and (1), as alleged in the original charge. Before the Administrative Law Judge ("ALJ"), the General Counsel presented testimony that Allen Matthews was personally present at all of these events, with the sole exception of Bill Mellen's statements.

With respect to the unlawful discharge allegation originally charged by the Union, Drug Plastics responded that Allen Matthews was properly fired for cause. As to the Sec. 8(a)(1) allegations in the complaint, the company issued a general denial and presented the affirmative defense that the allegations should be dismissed under NLRA Sec. 10(b) because they exceeded the scope of the charge and were time-barred. The company did not present any testimony to refute the substance of the Sec. 8(a)(1) allegations.

After a hearing in March, 1992, an ALJ found that the allegations in the complaint bore a sufficiently close relationship to those in the charge to satisfy the requirements of Sec. 10(b) of the NLRA. He then found that Drug Plastics had committed violations of Sec. 8(a)(1) in the form of Tim Matthews' and Fred Beisicker's plant closure threats, Bill Mellen's discharge threat, and Glenn Forte's solicitation of grievances and threat of surveillance. The ALJ dismissed the remaining allegations in the complaint. Finding that Allen Matthews was discharged for good cause, the ALJ also dismissed the unlawful discharge allegation. The Board affirmed the ALJ's findings in full, including the determination that the allegations in the complaint were properly related to those in the charge. Drug Plastics petitions for review, and the Board cross-applies for enforcement.

II. DISCUSSION

The only issue for our review is whether the Sec. 8(a)(1) violations were properly alleged in the complaint. The Union's charge alleged only a violation of Secs. 8(a)(3) and (1) arising from the firing of Allen Matthews. That allegation reappeared in the complaint, but the ALJ ultimately dismissed it after a hearing on the merits and after discrediting the testimony of witnesses presented by the General Counsel.

The Supreme Court has held that the General Counsel is not bound by the precise contents of the charge in fashioning the complaint. Neither is the General Counsel held to the standard of a private pleading. Although the General Counsel may not begin an investigation without a charge, the charge merely acts as a trigger to the Board's jurisdiction and not as a rigid limit thereon. NLRB v. Fant Milling Co., 360 U.S. 301, 307-08, 79 S.Ct. 1179, 1183-84, 3 L.Ed.2d 1243 (1959). On the other hand, the Act does not confer carte blanche authority on the Board to place allegations in the complaint that are entirely unrelated to those in the charge. Id. at 309, 79 S.Ct. at 1184. The statutory hook is Sec. 10(b) of the NLRA, which reads, in relevant part:

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 ... Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof....

29 U.S.C. Sec. 160(b). Drug Plastics claims that its violations were unrelated to the allegations in the charge and should not have been included in the complaint; moreover, if Drug Plastics is right about this, then these allegations were time-barred as of the date of the hearing before the ALJ.

As a preliminary matter, Drug Plastics argues that we should evaluate the relationship between the charged conduct and the conduct alleged in the complaint based on the ultimate factual findings of the ALJ and Board. Because the ALJ found, and the Board agreed, that no violation arose from the charged conduct (the firing of Allen Matthews), Drug Plastics argues that there could be no factual relationship between that alleged conduct and the Sec. 8(a)(1) allegations contained in the complaint.

We reject this rigid standard. This Court has looked to the General Counsel's allegations, not the eventual proof of those allegations, in determining whether a sufficient relationship exists to confer jurisdiction. See Land Air Delivery, Inc. v. NLRB, 862 F.2d 354, 360 (D.C.Cir.1988), cert. denied, 493 U.S. 810, 110 S.Ct. 52, 107 L.Ed.2d 21 (1989) ("Because the factual activity alleged in the union's charge in this case was the precise activity that supported the Board's allegations [in the complaint]," the Board had jurisdiction.) (emphasis omitted). See also NLRB v. Overnite Transp. Co., 938 F.2d 815, 821 (7th Cir.1991) ("[T]he two allegations [in the charge and complaint] involved the same legal theory and arose out of the same sequence of events.") (footnotes omitted); NLRB v. Braswell Motor Freight Lines, 486 F.2d 743, 747 (7th Cir.1973) (Stevens, J., dissenting) ("I would suppose the Board's jurisdiction should be tested by the General Counsel's allegations rather than his proof."); Waste Management of Santa Clara Co., 308 N.L.R.B. 50, 50 (1992) ("[A] sufficient nexus between charge and complaint is established when all the allegations involve 'part of an overall plan to resist organization.' ") (citations omitted). If the proof is insufficient as to one issue properly alleged, that does not deprive the Board of jurisdiction to hear the evidence supporting the complaint's other proper allegations. Any other rule would demolish the Board's jurisdiction over all sorts of meritorious claims, and that deprivation could never be discovered until after a full hearing on the merits--by which time all...