Gulf States Mfrs., Inc. v. N.L.R.B.

• Decision Date: 15 September 1978
• Docket Number: No. 77-2406,77-2406
• Citation: 579 F.2d 1298
• Parties: 99 L.R.R.M. (BNA) 2547, 84 Lab.Cas. P 10,827 GULF STATES MANUFACTURERS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1298

579 F.2d 1298

99 L.R.R.M. (BNA) 2547, 84 Lab.Cas. P 10,827

GULF STATES MANUFACTURERS, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 77-2406.

United States Court of Appeals, Fifth Circuit.

Sept. 15, 1978.

James F. Smith, Gary R. Kessler, Atlanta, Ga., for petitioner, cross-respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Assoc. Gen. Counsel, Marion Griffin, Jesse L. 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 SKELTON ^*, Senior Judge, and FAY and RUBIN, Circuit Judges.

SKELTON, Senior Judge.

This case is before the Court upon the petition of Gulf States Manufacturing, Inc., (hereafter referred to as the "Company"), pursuant to Section 10(f) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 88 Stat. 395, 29 U.S.C. sec. 151, Et seq.) to review and set aside an order of the National Labor Relations Board issued on June 28, 1977, and reported at 230 NLRB No. 81. The Board filed a cross-application for enforcement. The charging party is the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (hereinafter referred to as the "Union").

In its decision, the Board held that the Company interferred with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act; that the Company violated Section 8(a)(5) of the Act by refusing to bargain in good faith with the Union; and that the Company violated Section 8(a)(3) of the Act by laying off employees because of their Union membership and by failing to properly or timely recall or reinstate employees after a strike. ¹

The underlying facts giving rise to this controversy are generally as follows. The company manufactures prefabricated metal buildings in a highly competitive industry that is seasonal in character. Because of a depression and business slump in the industry in the early part of 1975, the Company froze all wages on March 1, 1975, and began laying off workmen from time to time in order to meet the economic pressures it was encountering. All of this was done long before there was any labor union activity among its employees.

I. The Withdrawn Charges Issue

On July 21, 1975, the Union filed a petition seeking to represent the employees of the Company at its Starkville, Mississippi plant as their bargaining agent. An election was ordered to be held on September 12, 1975. On September 11, 1975, the night before the election, the general manager of the Company, Clayton Richardson, made a speech to the employees in which he spoke of the wage freeze of the Company and the freeze on wages existing because of the union election and how long the freezes might last. He also commented on possible changes in work schedules that allowed employees to ride in car pools to and from work if the Union won the election.

The election was held on September 12, 1975, in which a majority of the employees voted for Union representation. The Company filed timely objections on September 17, 1975, in Case No. 26-RC-5064, challenging election procedures and alleging failure to protect the secrecy of the ballot at the election. The Union responded by filing unfair labor charges against the Company in Case No. 26-CA-5812, stating in pertinent part as follows:

"h. The above-named employer has engaged in and is engaging in unfair labor practices within the meaning of section 8(a), subsections (1) and (3) and (5) of the National Labor Relations Act, and these unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act.

"2. Basis of the Charge (Be specific as to facts, names, addresses, plants involved, dates, places, etc.)

"Since on or about September 15, 1975, the above-named Employer, by its officers and agents, has temporarily laid off the following employees and others because of their membership in and activities on behalf of International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, a labor organization:

Joe Kimbrough Jessy Stallings

Jack Griffin Willie Buford

Henry Vaughn Johnny Oswalt

Odell Roberson Aaron Mitchell

Bruce Davis Steve Carmichal

Oddie Harris Timmy Harrelson

Fred Williams

The above-named Employer, by its officers and agents, refused to bargain with the above-named labor organization on and after September 15, 1975, by unilaterally changing terms and conditions of employment, specifically laying off employees contrary to its prior practice.

By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act."

The Union filed additional charges against the Company in Case No. 26-CA-5786. The document containing these charges is not in the record and for that reason we are unable to relate the charges verbatim. However, the Company represents that the charges complained of: (1) the aforesaid speech of general manager Richardson; (2) statements made by supervisor Joe Starnes on September 15, 1975, regarding future enforcement of existing Company rules pertaining to work that had not been strictly enforced before the election; (3) the layoffs by the Company of 20 workmen between September 15 and October 1, 1975, when there had been no layoffs in the four months just before the election; (4) the statement made by supervisor, Ervin Perrigan, to certain employees shortly after the election that he would not be able to help them any more and that in the future they would have to go through their stewards and the President of their Union; (5) the statement made about two weeks after the election by supervisor John Hayes to employee Joe Malone that the Union had his automatic raise frozen and if the Union had not gotten in he probably would have gotten his raise, and that he might get it if he got a group of people to sign a petition to vote the Union out; (6) the statement of supervisor Hayes to employee Jack Griffith that the Union had the wages frozen; (7) the answer of supervisor Perrigan to employee Richard Harris in November, 1975, who asked about a raise, that "the Union's got things tied up now;" (8) and the statement of Perrigan to Philip Parker that he would not get a raise until the contract was negotiated.

We accept the fact that the above charges of the Union against the Company were contained in Case No. 26-CA-5786 for several reasons. The Company says they were and the Board does not deny it. Such charges were considered as unfair labor practices of the Company by the Administrative Law Judge (ALJ) who tried the case, and they are now urged as such by the Board in its brief. Furthermore, it is significant that all of the events mentioned in the charges occurred before the settlement was made and the charges were withdrawn by the Union with the approval of the Board's Regional Director on November 11, 1975, as shown below. Even if the charges were not described in detail or with specificity on the forms used by the Union and furnished by representatives of the Board in filing the charges, they are deemed to have been included because of the "catch-all" phrase on the forms which stated:

"By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act."

This court held in N. L. R. B. v. Central Power & Light Co., 425 F.2d 1318 (5 Cir. 1970) that the "catch-all" phrase "by other acts and conduct" in the charges was sufficient to include other acts and conduct if they are sufficiently related to the specific acts alleged. In that case a charge of an unlawful reprimand of an employee and other violations was held to be sufficient to include a non-solicitation rule even though it was not mentioned in the charges. There the court stated:

"Accordingly, general allegations such as that the employer 'by other acts and conduct * * * interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in section 7 of the Act,' as the charge here alleged, Are legally sufficient to cause inclusion of other acts if they are sufficiently related to the specific acts alleged. And sufficient relation has generally been found between acts that are part of the same course of conduct, such as a single campaign against a union. Texas Industries, Inc. v. NLRB, 5th Cir. 1964, 336 F.2d 128, 132; * * * ." (Emphasis supplied) 425 F.2d 1320.

"In this case, since, the events complained of were all part of the same alleged anti-union campaign, were close together in time, and were clearly covered by the general language of the formal charge, there is little merit to any argument that the first charge did not authorize the Board to complain of the no-solicitation rule." 425 F.2d 1321.

In Texas Industries, Inc. v. N. L. R. B., 336 F.2d 128 (5 Cir. 1964), the court held that charges filed by the Union that alleged generally that the company had "engaged in * * * unfair labor practices within the meaning of" Section 8(a)(1) and (3), and then alleged specifically various acts of coercion against a named employee was sufficient to include unfair labor practices by the company against other employees which were not mentioned in the charges. In that case the court held:

"The original charge filed by the union in this case alleged generally that the company had 'engaged in * * * unfair labor practices within the meaning of' § 8(a)(1) and (3), and then went on to allege specifically a discriminatory discharge and various acts of coercion with respect to employee Tadlock. The company maintains that the charge is addressed only to unfair labor practices committed...