Gulf States Mfrs., Inc. v. N.L.R.B.
| Decision Date | 10 July 1979 |
| Docket Number | No. 77-2406,77-2406 |
| Citation | 598 F.2d 896 |
| Parties | 101 L.R.R.M. (BNA) 2805, 86 Lab.Cas. P 11,426 GULF STATES MANUFACTURERS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
James F. Smith, Gary R. Kessler, Atlanta, Ga., for petitioner, cross-respondent.
Elliott Moore, Deputy Assoc. Gen. Counsel, Carol A. DeDeo, Marion Griffin, Jesse I. Etelson, Attys., N.L.R.B., Washington, D.C., for respondent, cross-petitioner.
Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.
Before BROWN, Chief Judge, and COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN and VANCE, Circuit Judges. *
In this case the National Labor Relations Board included in a complaint against an employer unfair labor practice charges that the charging union had withdrawn by agreement with the employer but later had refiled. In the ensuing case the Board found that the employer had committed some of the unfair practices. A panel of this court held that the union could not reallege or reinstate the charges it had withdrawn by agreement and that the Board could not include the realleged charges in the complaint. 1 The court en banc concludes that the Board should not have made the realleged charges the subject of findings of unfair labor practices.
The union received a majority in a Board election conducted in September 1975. The employer filed objections to the election. The union then filed unfair practice charges. Before matters proceeded much further, on or about November 7, 1975, the union and the employer entered into a written stipulation set out in the margin. 2 Under its terms, the employer agreed to withdraw with prejudice its pending objections to the election, (Ps 1 and 7) and the union agreed to withdraw with prejudice its pending unfair practice charges (Ps 2 and 7). The parties agreed that the union would be certified forthwith as bargaining agent and good faith bargaining should commence (P 6). The stipulation served as a joint request to the Regional Director for withdrawal of the objections and charges "and that such withdrawals be with prejudice." (P 7).
The stipulation was filed with the Regional Director. He wrote the parties on November 11, 1975, saying:
This is to advise that I have approved the Withdrawal Requests submitted in this matter.
The same day he certified the union.
The charges withdrawn by the union had alleged that beginning in late August 1975 the employer had laid off employees because of union membership, unilaterally changed terms and conditions of employment, made various coercive statements, and had blamed a wage freeze on the union. 3 The employer's objection to the election which was withdrawn charged that secrecy of the ballot was not maintained during the election.
Bargaining commenced November 21. In February 1976 it broke down, and the union went on strike for a week beginning February 14. On February 17 the union filed the unfair practice charges that began the present case, consisting of reallegation of some of the withdrawn charges plus a new charge of failure to bargain in good faith. Negotiations resumed and broke down again. The union amended the charges several times thereafter. The Board issued a complaint in April and amended it in July to consolidate all of the union's charges including those that had been withdrawn and realleged.
Before the ALJ the employer moved to dismiss from the complaint the realleged charges on the grounds they were time-barred by the six months' statute of limitations in § 10(b) of the Act, and that the Regional Director abused his discretion in including them in the complaint when amended in July. The ALJ denied the time-bar on the ground that the February charges had been filed within six months of the occurrence of the withdrawn matters and were sufficiently related to the withdrawn charges that the withdrawn charges could be deemed filed with the February charges. The ALJ found also that the Regional Director did not abuse his discretion by including the withdrawn charges in the amended complaint.
The ALJ went on to find that the employer had committed various 8(a)(1) and 8(a)(3) pre-stipulation violations that had been included in the withdrawn charges and also various violations that had occurred after bargaining broke down in February, including failure to bargain in good faith.
The Board adopted the ALJ's findings of fact and affirmed his conclusions of law. The employer appealed, and the Board cross-appealed for enforcement. A panel of this court, in a two-to-one decision, found the employer had not failed to bargain in good faith and denied enforcement except for post-strike 8(a)(1)'s. The panel found that the union could not "reinstate" the charges because it had withdrawn them with prejudice, and also, since the employer had relied to its detriment on the union's promise, the union was estopped from "reinstating" the charges. With respect to the Board, the court found that the Board was "legally and morally bound" by the withdrawal agreement because, through the Regional Director, it approved the agreement and, pursuant to it, certified the union; this, the court held, "made the Board a party to the agreement." 579 F.2d at 1307.
We granted the petition of the Board for rehearing en banc because of our concern with the holdings concerning the effect of the agreement to withdraw charges and the Board's treatment of the charges withdrawn and realleged. 4 The court en banc does not disagree with the conclusion of the panel that the employer did not fail or refuse to bargain in good faith and with the conclusion that the employer committed post-strike 8(a)(1)'s. We agree with the Board, however, that Supervisor Perrigan's statement to employee Parker, that the lack of a wage increase was due to union activity, occurred in January 1976, after the stipulation was made, and, therefore, was not within the withdrawn charges, and we agree that this violated § 8(a)(1). We cannot tell from the record whether Perrigan's statement to employee Harris concerning wage increases occurred before or after the stipulation the testimony merely says it occurred in November. This portion of the case must be remanded to the Board for further factual development.
The court holds that the Board did not abuse its discretion in permitting the union to reassert the withdrawn charges or in issuing a complaint that included the withdrawn charges. It did, however, abuse its discretion in making the withdrawn and reasserted charges the subject of findings of unfair labor practices. Because of our conclusion it is not necessary that we explore the factually complex issue of the application of the statute of limitations to the various charges and numerous reallegations of charges. 5
In considering whether the Board should have found the employer guilty of the withdrawn charges, we keep in mind two broad considerations: the integral role that requests to withdraw charges play in the adjustment of labor disputes in our country and the Board's role as an exponent of public interests rather than private rights. For the fiscal year 1977, approximately one-third of all unfair practice charges filed with the Board were disposed of by a Regional Director's approval of withdrawal requests made by parties before complaints were issued. 6 It is apparent that withdrawal of charges is a favored means of settling labor disputes by unions, employers and the Board. 7 The Board considers voluntary adjustments of labor disputes an essential method of implementing national labor policy. 8
The procedures adopted by the Board for handling unfair practice charges reflect its policy of encouraging voluntary settlement of labor disputes. When charges are filed in the Regional Director's office the charging party is requested "to submit promptly evidence in its support." 29 C.F.R. § 101.4. The person against whom the charges are filed is given an opportunity to respond. A field staff member investigates the charges. If after investigation the Regional Director concludes that there is no basis for the charges he recommends that they be withdrawn. Id. § 101.5. If the complainant accepts the recommendation the charges are withdrawn; if he rejects the recommendation the Regional Director dismisses the charges. Id. § 101.6. 9
If, as in this case, the Regional Director concludes that the charges can be substantiated, the parties are given an opportunity to settle the case before a complaint is issued. Id. § 101.7. Only when attempts at informal adjustments have failed may a complaint issue. Id. § 101.8; See NLRB v. Local 264 Laborers' International Union, 529 F.2d 778 (CA8, 1976). After the issuance of a complaint the Board favors formal settlements, which often include the Board's entering an order. See generally NLRB v. Oil, Chemical & Atomic Workers International Union, 476 F.2d 1031 (CA1, 1973); Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (CA3, 1966). This is discussed further Infra.
The Board acts in the public interest to enforce public, not private rights. National Licorice Co. v. NLRB, 309 U.S. 350, 364-65, 60 S.Ct. 569, 577-78, 84 L.Ed. 799, 810-11 (1940); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265-66, 60 S.Ct. 561, 563-64, 84 L.Ed. 738, 742 (1940); Agwilines, Inc. v. NLRB, 87 F.2d 146, 150-51 (CA5, 1936). Section 10(a) of the Act explicitly provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise . . . ." Accordingly, the "parties cannot by contractual agreement divest the Board's function to operate in the public interest." Boire v. Int'l Brotherhood of Teamsters, 479 F.2d 778, 803 (CA5, 1973).
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