International Union, United Mine Workers v. NLRB

• Decision Date: 25 January 1962
• Docket Number: No. 16048.,16048.
• Parties: INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA; District 31, United Mine Workers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 60, 299 F.2d 441 (1962)

INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA; District 31, United Mine Workers of America, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 16048.

United States Court of Appeals District of Columbia Circuit.

Argued October 2, 1961.

Decided January 25, 1962.

Mr. Willard P. Owens, Washington D. C., for petitioner International Union, United Mine Workers of America. Mr. Louis D. Meisel, Fairmont, W. Va., of the bar of the Supreme Court of West Virginia, pro hac vice, by special leave of court, for petitioner, District 31, United Mine Workers of America.

Mr. Robert Sewell, Attorney, National Labor Relations Board, of the bar of the Supreme Court of Wisconsin, pro hac vice, by special leave of court, with whom Messrs. Stuart Rothman, General Counsel, National Labor Relations Board, Dominick L. Manoli, Associate General Counsel, National Labor Relations Board, Marcel Mallet-Prevost, Assistant General Counsel, National Labor Relations Board, and Samuel M. Singer, Attorney, National Labor Relations Board, were on the brief, for respondent.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The case comes to us on petition of International Union, United Mine Workers of America, and District 31, United Mine Workers of America, to review and set aside an order of the Labor Board issued September 29, 1960, finding petitioners to have violated section 8(b) (1) (A) of the Labor Management Relations Act¹ during an organizational campaign among the employees of five coal mining companies located in West Virginia. The Board found petitioners had restrained and coerced the employees in the exercise of their statutory right to refrain from union activity.² The Board requests enforcement of its order.

The five charging companies, whose employees were found to have been restrained and coerced, are Blue Ridge Coal Corp., M. & T. Coal Co., Marra Bros. Coal Co., Thompson Coal & Construction Co., and Sinsel Coal Co.³ The organizational drive began in the spring of 1958 and was found by the Board to have resulted in mass picketing, road blocks, physical assaults and other intimidating conduct attributable to petitioners, thus violating the employees' rights.

The charges of Marra Bros., Blue Ridge and M. & T. were filed June 11, 1958, naming only District 31 as respondent. On June 12, 1958, Thompson filed its original charge naming as respondents "United Mine Workers of America, Harry Myers and its and his agents, members, employees, pickets and associates."⁴ A copy of this charge was sent by registered mail to the address of District 31 at Fairmont, West Virginia, and was accepted and receipted for by the secretary-treasurer of District 31. On November 19, 1958, Blue Ridge, M. & T. and Marra Bros. each amended its original charge, naming for the first time the International as respondent. On the same day, November 19, Thompson amended its initial charge and specifically named the International as respondent. This charge places the violations alleged to have been committed by either the International or District 31 affecting the rights of Thompson's employees as no earlier than June 9, 1958. The four amended charges referred to were served upon the International on November 22 at its Washington, D. C., address. On September 4, 1958, Sinsel filed its initial charge, naming only District 31 as respondent, followed by an amendment thereto on November 24 in which the International was included. Sinsel's amended charge was served on the International on November 26.

The Board found that the Thompson charge of June 12 named the International as a party, that service was effected on the International, and that there was thus established the section 10(b)⁵ limitation period, that is, six months prior to June 12, for all unfair labor practices committed by the International with respect to the employees of all five companies, though none of the four companies other than Thompson had charged the International until their November amended charges were filed. The theory of the Board was that all the alleged unfair practices alleged against the International were related and could be encompassed within the single Thompson charge of June 12. Reasoning thus the Board on the basis of the latter charge filed a consolidated complaint against the International covering all violations said to have been committed by the International affecting the employees of all five companies during a period of six months prior to June 12.

The International contends that (1) the Thompson charge of June 12 did not name it as a party; (2) if it did name the International then service on the secretary-treasurer of District 31 was not service "upon the person against whom such charge is made" as required by section 10(b); and (3) that even if the International Union had been named in and served with the Thompson charge of June 12, the Board could not, on the basis of this charge, validly issue a complaint against the International for unfair labor practices affecting employees of companies other than Thompson, not set forth in the Thompson charge. We think this latter contention must be sustained. This makes it unnecessary to decide whether or not the Thompson charge of June 12 was against or served upon the International.

We so conclude for the following reasons: The November Thompson charge clearly was against and served upon the International. It covered the prior six months, which took in the first Thompson charge of an unfair labor practice against the International, alleged to have occurred June 9. It is accordingly unnecessary, insofar as the Thompson charges against the International are concerned, to rely upon that company's June 12 charge. As to the charges of the other companies they must "stand on their feet," as it were; insofar as the International is concerned those charges cover only the six months periods preceding the November dates when these companies for the first time named and served the International. These companies cannot come in, as against the International, on the basis only of the Thompson June 12 charge against the International.

For a contrary position the Board relies upon N. L. R. B. v. Fant Milling Co., 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243. That case, however, concerned the power of the Board to consider unfair labor practices committed subsequent to the filing of the charge and while the matter was pending before the Board. It was said that the additional and subsequent practices were related to the violations charged originally against the same employer. But the Court added:

"What has been said is not to imply that the Board is, in the words of the Court of Appeals, to be left `carte blanche to expand the charge as they might please, or to ignore it altogether.\' * * * Here we hold 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.\'"

360 U.S. at 309, 79 S.Ct. 1184. Neither National Licorice Co. v. N. L. R. B., 309 U.S. 350, 369, 60 S.Ct. 569, 84 L.Ed. 799, nor N. L. R. B. v. Gaynor News Co., 197 F.2d 719 (2d Cir.1952), aff'd, A. F. L. v. N. L. R. B., 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, both cited by the Board in its decision, supports the Board's position in this case. In National Licorice the Court permitted the Board in its complaint to deal with unfair labor practices not included in a charge but which "related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board." And in Gaynor News, as well as in National Licorice, the enlarged complaint was against the same employer who had been charged. In the present case, however, the practices attributed to the International affecting employees of other companies during the six-months period which preceded the Thompson charge of June 12 obviously did not occur while that charge was pending before the Board. Moreover the present case is unlike Fant Milling in that the employees of companies other than the charging company are alleged to have been restrained and coerced. The expanded interpretation which the Board here gives the Fant Milling doctrine is not warranted by that decision and we think is inconsistent with section 10(b) of the Act, which contemplates that the complaint shall set forth the unfair labor practices which have been charged, though it may include other related ones arising while the charge is pending before the Board. It may not include unstated ones which might previously have occurred affecting employees of a company other than the company which has filed a charge. Thompson in filing its June 12 charge acted only on its own behalf. To hold that it authorized the Board to file a complaint involving the employees of other companies, and in respect of unnamed and undated occurrences, would disrupt the Act's procedural plan of charge and complaint as set forth in section 10.

By reason of the foregoing the International may be held liable only for unfair labor practices occurring on and after May 23, 1958, at M. & T., Blue Ridge, Marra Bros., and May 27 in the case of Sinsel. The earliest unfair labor practices among Thompson's employees, as we have said, were June 9, 1958, which was within six months prior to the service of Thompson's amended charge which clearly named, and was served upon, the International.

We turn now to the evidence and findings of unfair labor practices. The Board's findings of violations by the International among the employees of the several...