FPC Holdings, Inc. v. N.L.R.B.

• Decision Date: 13 September 1995
• Docket Number: 94-2513,Nos. 94-2415,s. 94-2415
• Parties: 150 L.R.R.M. (BNA) 2349, 130 Lab.Cas. P 11,406 FPC HOLDINGS, INCORPORATED, d/b/a Fiber Products, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FPC HOLDINGS, INCORPORATED, d/b/a Fiber Products, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 935

64 F.3d 935

150 L.R.R.M. (BNA) 2349, 130 Lab.Cas. P 11,406

FPC HOLDINGS, INCORPORATED, d/b/a Fiber Products, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FPC HOLDINGS, INCORPORATED, d/b/a Fiber Products, Respondent.

Nos. 94-2415, 94-2513.

United States Court of Appeals Fourth Circuit.

Argued May 3, 1995.

Decided Sept. 13, 1995.

ARGUED: Frank S. Astroth, Astroth, Serotte, Rockman & Wescott, Baltimore, MD, for petitioner. Vincent J. Falvo, Jr., N.L.R.B., Washington, DC, for respondent. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda Sher, Acting Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Paul J. Spielberg, Deputy Assistant General Counsel, N.L.R.B., Washington, DC, for respondent.

Before MICHAEL and MOTZ, Circuit Judges, and YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

Petition for review denied and enforcement granted by published opinion. Judge MICHAEL wrote the opinion, in which Judge MOTZ and Senior Judge YOUNG joined.

OPINION

MICHAEL, Circuit Judge:

FPC Holdings, Inc. (FPC) petitions for review of an order of the National Labor Relations Board. The Board's order found that FPC violated the National Labor Relations Act (the "Act"), 29 U.S.C. Secs. 158(a)(1), (3), by reprimanding and ultimately discharging two employees for engaging in protected concerted activities. FPC raises two issues. On the first, a claim that the Board erred in allowing the complaint against FPC to be amended, we conclude that amendment was proper because the allegations added in the General Counsel's amended complaint were closely related to the allegations in the original charges to the Board. On FPC's second issue, a claim of insubstantial evidence, we conclude that there was substantial evidence to support the Board's finding that FPC engaged in unfair labor practices proscribed by the Act. We therefore deny the petition for review and enforce the Board's order.

I.

FPC is a Baltimore-based company that distributes paper and plastic packaging materials, janitorial products, and 7-Up products to supermarkets and fast food restaurants. The history of FPC's development began in 1953 with the formation of Fiber Products Company, Inc., which operated as an independent company until June 1990. Fiber Products distributed only packaging and janitorial products. In June 1990 Fiber Products' owners formed FPC as a holding company, and Fiber Products became its subsidiary. FPC immediately acquired Thomas Buccheri & Sons, Inc., a wholesale distributor similar to (but smaller than) Fiber Products. Later, in September 1991, FPC bought from the 7-Up Bottling Company a beverage distribution operation that was merged into the Buccheri subsidiary.

FPC began losing large sums of money in 1991. As an initial response, FPC imposed an employee wage freeze in the summer of that year. Thereafter, in the face of continuing losses, it took steps to consolidate and modernize its operations. In June 1992 the old Buccheri warehouse (on Franklintown Road) was closed and its lease cancelled. Except for a few drivers who were transferred to Fiber Products, the Buccheri employees were phased out. Buccheri customers were then served from the original Fiber Products warehouse on Strickland Street. The 7-Up operation and all sales staff were moved to a new facility on Commerce Drive. In October 1992 the Fiber Products and Buccheri subsidiaries were formally merged into FPC, with FPC as the surviving corporation. ¹

FPC employs approximately ten truck drivers at its Strickland Street warehouse. Until October 1992 this number included Dave DeCarlo and Robert Zeback. The drivers leave the warehouse to make their runs between 4:00 and 6:00 a.m. each morning, returning between 11:00 a.m. and 3:00 p.m. Any return after 4:00 p.m. is considered a "late" return, for which drivers are required to give prior notice to the warehouse. The drivers are allowed a forty-five minute lunch break during the course of their deliveries.

Gilbert Tyler, FPC's transportation supervisor, held monthly drivers' meetings at which safety rules and other topics were discussed. In the spring or early summer of 1992 the drivers began to gather by themselves prior to these company meetings and discuss informally complaints and concerns about their jobs. The 1991 wage freeze was a frequent subject of discussion. DeCarlo served as the drivers' spokesman in the ensuing meetings with management. In April 1992, following a meeting among drivers about the wage freeze, DeCarlo met with Bonnie Roe (personnel director) about a promised wage increase. Roe reassured DeCarlo that he was a "good employee," but she told him that his "attitude" was slipping.

As mentioned above, drivers were allowed a lunch break during their deliveries to be taken at their discretion. On May 26, 1992, five drivers, including DeCarlo and Zeback, met for lunch at Bob's Big Boy Restaurant. The drivers discussed labor grievances. The length of the lunchtime meeting was disputed: DeCarlo and Zeback testified that it lasted about an hour, and Roe testified that it lasted two hours. While the drivers were inside the restaurant, an FPC customer called the warehouse and reported that the drivers' trucks were parked outside Big Boy's. FPC's warehouse operations manager, Michael Taylor, drove to the restaurant and took down the numbers of the trucks, but he did not go inside. DeCarlo and Zeback returned their trucks to the warehouse between 2:00 and 3:00 p.m., which was their customary time and well within FPC's 4:00 p.m. deadline.

Several days after the Big Boy meeting, Roe met with Zeback for a probationary evaluation. During the evaluation Roe told Zeback that he was a "troublemaker" and was "consorting with troublemakers." Shortly thereafter, Roe prepared a written reprimand for Zeback. The reprimand cited Zeback for taking a "2 hr. lunch" and for "[a]ttendance at a 'Dave DeCarlo meeting' " to "discuss 'pay.' " In addition, it said "R. Z. admits to being there [with] 4 other drivers. Knows this is against policy and that [it] is grounds for immediate dismissal." FPC also prepared a written reprimand for DeCarlo that accused him of "poor attitude, cooperation, meeting on company time." Prior to the Big Boy meeting DeCarlo had never received a negative evaluation.

Near the end of September 1992 a group of drivers, including DeCarlo and Zeback, met before work to discuss getting union representation. DeCarlo agreed to talk to his brother, who was a union shop steward at a paper company. The drivers agreed to meet with a union representative on October 6. The day after the September meeting, Zeback and DeCarlo invited other drivers (either in person at the warehouse or over the company CB radio) to the upcoming October 6 meeting to consider unionizing.

On October 5, after completing their runs, DeCarlo and Zeback were summoned separately into Taylor's office and told that they were being permanently laid off. In response to questions from DeCarlo and Zeback, Taylor said that their seniority did not matter and that the company was not cutting their routes, but that they "had to go." The October 6 meeting with the union representative was canceled because the other drivers were afraid of retribution. No other drivers were laid off at that time. ²

Following the layoffs, FPC moved two backup drivers to DeCarlo's and Zeback's routes. FPC also ran advertisements in local newspapers soliciting applications for "truck driver" and "driver/warehouseman" positions and characterizing itself as an "expanding" company. The company placed written reprimands in the personnel files of Mike Comegys and Tim Taylor, two other drivers present at the Big Boy meeting, and gave raises to four other drivers.

On October 26, 1992, and November 10, 1992, respectively, DeCarlo and Zeback filed charges with the Board alleging that they had been terminated by FPC because of their union activities. On January 28, 1993, the Board's General Counsel consolidated the two cases and issued a complaint alleging violations of Sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1), (3). ³ On August 3, 1993, the first day of the hearing, the General Counsel moved to amend the complaint to add allegations that FPC violated Section 8(a)(1) of the Act by issuing reprimands in response to the meeting at Bob's Big Boy Restaurant. The ALJ granted the motion to amend and found that FPC had violated Sections 8(a)(1) and 8(a)(3) of the Act by reprimanding and terminating DeCarlo and Zeback in retaliation for engaging in protected concerted activities. The Board affirmed the ALJ's decision, and FPC now petitions for review.

II.

A.

FPC first challenges the Board's adoption of the ALJ's decision to permit the General Counsel to amend the complaint to add allegations that the reprimands following the Big Boy meeting violated Section 8(a)(1) (the "reprimand allegations"). DeCarlo and Zeback filed their original charges in October and November of 1992, alleging only that they were terminated in retaliation for their attempt to organize a union (the "discharge allegations"). The General Counsel's initial consolidated complaint alleged that DeCarlo and Zeback were discharged because of their activities in support of the union and other concerted activities, in violation of Sections 8(a)(1) and 8(a)(3).

Under Section 10(b) of the Act, 29 U.S.C. Sec. 160(b), a complaint may be based only upon violations occurring within six months prior to the filing of a charge with the Board. A complaint or an amended complaint may include allegations not in the original charge if the violations alleged occurred within six months before the charge and are "closely related" to the allegations in the charge. Redd-I, Inc., 290 NLRB 1115, 1988 WL 214320 (1988); Reebie Storage & Moving Co. v. NLRB, 44 F.3d 605, 608 ...