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

• Decision Date: 27 January 1995
• Docket Number: No. 93-1013,93-1013
• Parties: 148 L.R.R.M. (BNA) 2334, 310 U.S.App.D.C. 128, 130 Lab.Cas. P 11,365 DRUG PLASTICS & GLASS COMPANY, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1017

44 F.3d 1017

148 L.R.R.M. (BNA) 2334, 310 U.S.App.D.C. 128,

130 Lab.Cas. P 11,365

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

No. 93-1013.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 6, 1994.

Decided Jan. 27, 1995.

On Petition for Rehearing.

Jonathan Kane argued the cause, for petitioner. On the briefs, for petitioner were Aaron C.F. Finkbiner, III, and Paul D. Snitzer. Frank J. Eisenhart, James A. Meyers and Maureen L. Hogel entered appearances, for petitioner.

Linda Dreeben, Supervisory Atty., N.L.R.B., argued the cause, for respondent. With her on the brief were Linda Sher, Acting Associate Gen. Counsel, Aileen A. Armstrong, Deputy Associate Gen. Counsel, and Deborah E. Shrager, Atty., N.L.R.B. David S. Habenstreit entered an appearance, for respondent.

Before SILBERMAN, SENTELLE, and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

Drug Plastics & Glass Company ("Drug Plastics") petitions for review of an order of the National Labor Relations Board ("NLRB" or the "Board") remedying unfair labor practices under Section 8(a)(1) of the National Labor Relations Act ("NLRA"), 29 U.S.C. Sec. 158(a)(1) (1988), and the NLRB cross-petitions for enforcement of the order. Drug Plastics contends that the complaint which gave rise to the order exceeded the scope of the allegations in the union's charge, and thus the allegations in the complaint were untimely under NLRA Sec. 10(b), 29 U.S.C. Sec. 160(b). We previously denied Drug Plastics' petition for review and allowed the cross-petition for enforcement. Drug Plastics & Glass Co. v. NLRB, 30 F.3d 169 (D.C.Cir.1994). Upon rehearing, we have come to the conclusion that Drug Plastics is correct in its position that the allegations in the complaint did not bear a "significant factual relationship" to the single allegation in the charge. We therefore grant Drug Plastics' petition for review and deny enforcement of the Board's order.

I. BACKGROUND

Drug Plastics, a Pennsylvania manufacturer of plastic bottles for pharmaceutical use, discharged employee Allen Matthews in April, 1991, after a company vice-president learned that Matthews had been smoking on the production floor in violation of company policy and that he had failed to attend certain quality control meetings. Prior to Matthews' discharge, in January and February, 1991, petitioner had been the subject of modest, ultimately unsuccessful union organizing activities by the United Rubber, Cork, Linoleum and Plastic Workers of America, District No. 1 (the "Union"), in which the Union failed to convince a single Drug Plastics employee to sign an authorization card.

On July 15, 1991, the Union filed with the NLRB an unfair labor practice charge, alleging the following violation of NLRA Secs. 8(a)(1) and 8(a)(3): ¹

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.

No other allegations were included in the charge.

Following the Union's filing, the NLRB General Counsel conducted an investigation. On September 30, 1991, the General Counsel issued a complaint, alleging violations of Secs. 8(a)(1) and 8(a)(3) arising from Matthews' discharge, and violations of Sec. 8(a)(1) arising from conduct by the company during the union organizing campaign. Specifically, the complaint alleged that (1) in February, 1991, Drug Plastics' Vice President Glenn Forte solicited employees' grievances, thereby promising improved conditions of employment in order to discourage Union support, and created the impression that Union activities were under surveillance; (2) in February, 1991, Assistant Vice President John Rogers threatened employees with unspecified reprisals if they signed Union authorization cards; (3) in February, 1991, Tim Matthews, a supervisor at the plant, threatened two employees with plant closure if the employees unionized; (4) in early April, 1991, Drug Plastics' President Fred Beisicker also threatened employees with plant closure if they unionized; (5) in June, 1991, Bill Mellen, another plant supervisor, threatened to discharge an employee if the employee engaged in union activity and told an employee that the Union's organizing activities were being monitored; (6) in April, 1991, the company instituted a wage increase in order to discourage unionization; and (7) in April, 1991, the company discharged Allen Matthews because of his union activities, as alleged in the original charge.

In March, 1992, the NLRB conducted a hearing before a Board Administrative Law Judge ("ALJ") in Philadelphia, Pennsylvania. Drug Plastics defended its dismissal of Matthews on the grounds that Matthews broke company policy when he smoked on the production floor, failed to attend a "pre-control" meeting required of employees, and exhibited excessive absenteeism during the first three months of 1991. With respect to the separate Sec. 8(a)(1) allegations in the complaint, Drug Plastics entered a general denial and moved for dismissal, arguing that the allegations were time-barred by NLRA Sec. 10(b), which provides:

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 service of a copy thereof....

29 U.S.C. Sec. 160(b). Drug Plastics contended that the Board lacked jurisdiction to act upon the alleged anti-union activities by the company that had occurred in February, 1991. Consequently, Drug Plastics presented no evidence with respect to those allegations.

After the hearing, the NLRB ALJ rejected Drug Plastics' time-bar defense, concluding that the allegations in the complaint bore a sufficiently close relationship to those in the charge to satisfy the timeliness requirements of Sec. 10(b). He found, however, that Allen Matthews had not been active in any Union organizing campaign and that the company discharged him for good cause, thus dismissing the unlawful discharge allegation which formed the basis for the Union charge. With respect to the other allegations, the ALJ concluded that Drug Plastics violated Sec. 8(a)(1) in the plant closure threats by Tim Matthews and Fred Beisicker, the discharge threat by Bill Mellen, and the solicitation of grievances and threats of surveillance by Glenn Forte. All of the remaining allegations were dismissed. Drug Plastics filed exceptions to the ALJ's decision with the NLRB. The NLRB affirmed the ALJ's decision in full. Drug Plastics petitioned this court for review of these decisions under 29 U.S.C. Sec. 160(f), and the Board cross-applied for enforcement. In our original opinion, we granted enforcement to the Board, concluding that it had alleged a sufficient factual nexus between the complaint allegations and the charge allegation. Drug Plastics & Glass Co. v. NLRB, 30 F.3d 169 (D.C.Cir.1994) ("Drug Plastics I "). Drug Plastics petitioned for rehearing, and we granted the petition.

II. DISCUSSION

Drug Plastics' argument is straightforward. Under 29 U.S.C. Sec. 160(b), the Board may not issue a complaint alleging an unfair labor practice except upon a properly filed charge alleging that such practice occurred within six months prior to the filing and service of the charge. Of the numerous allegations in the complaint against Drug Plastics, only the allegation concerning Allen Matthews met that criteria. Therefore, petitioner argues, the Board had no jurisdiction to pass on the other allegations. The Board does not dispute the basic law as stated by the petitioner but responds that it and the General Counsel, who acts for the Board in the investigation of charges and prosecution of complaints, may investigate and complain beyond the actual events in the charge "in order properly to discharge the duty of protecting public rights which Congress has imposed upon it." NLRB v. Fant Milling Co., 360 U.S. 301, 308, 79 S.Ct. 1179, 1183-84, 3 L.Ed.2d 1243 (1959). That is, it must be "free to make full inquiry under its broad investigatory power." Id.

But Fant Milling does not give the Board "carte blanche to expand the charge as [it] might please, or to ignore it altogether." Id. at 309, 79 S.Ct. at 1184. The Supreme Court in Fant Milling expressly "h[e]ld only that the Board is not precluded from 'dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.' " Id. (emphasis added) (quoting National Licorice Co. v. NLRB, 309 U.S. 350, 369, 60 S.Ct. 569, 579, 84 L.Ed. 799 (1940)). Thus, as we noted in G.W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C.Cir.1988), "[W]hen the Board ventures outside the strict confines of the charge, it must limit itself to matters sharing a significant factual affiliation with the activity alleged in the charge." Id. at 280 (emphasis added).

The Galloway case is strikingly parallel to the present facts. In that case, as in this one, the unfair labor practice charge alleged the improper firing of a specific employee for protected union activity. The Board's complaint added allegations concerning general anti-union activity by the same employer against its employees at the same plant. Id. at 277. In that case, the claim of relatedness was stronger than this one, as the questionable allegations concerned events only one day earlier than the firing alleged in the charge, but we specifically held:

It cannot be that allegations in a charge and a complaint having no...