Kansas Milling Co. v. National Labor Relations Board, 4036.

• Decision Date: 11 December 1950
• Docket Number: No. 4036.,4036.
• Parties: KANSAS MILLING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Tenth Circuit

185 F.2d 413 (1950)

KANSAS MILLING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 4036.

United States Court of Appeals Tenth Circuit.

November 9, 1950.

Rehearing Denied December 11, 1950.

George Siefkin, Wichita, Kan. (Carl T. Smith, Wichita, Kan., on the brief), for petitioner.

Bernard Dunau, Washington, D. C. (David P. Findling, Associate General Counsel, A. Norman Somers, Assistant General Counsel, Washington D. C., and Leonard S. Kimmell, Cincinnati, Ohio, on the brief), for respondent.

Before BRATTON, HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This case is here on the petition of the Kansas Milling Company to review and set aside an order of the National Labor Relations Board of October 28, 1949, issued pursuant to Section 10(c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c). In its answer the Board asks enforcement of its order.¹ Petitioner's first contention is that the action was barred because the unfair labor practices relied upon in the Board's order occurred more than six months prior to the filing of the second amended charge on which the complaint issued.²

The Act requires a charge to be filed before the Board may issue a complaint. The charge, however, is not a pleading. It merely sets in motion the machinery of an inquiry to determine whether a complaint shall issue. It has served its purpose when the Board embarks upon an inquiry.³ Anyone can file a charge. Many are filed by private citizens unskilled in the law or art of pleading. To require the strictness of formal pleadings in such cases would seriously impair the salutary purpose of the Act and the operations of the Board charged with its administration. A charge in the general language of the statute is sufficient if it challenges the attention of the Board and leads to an inquiry under the provisions of the Act.

So likewise an amended charge will be timely although filed more than six months after the occurrence of the alleged unfair labor practice if it relates to an unfair labor practice inherent in or connected with the original charge. In such cases, it will relate back to the filing of the original charge. The doctrine of relation back in pleading is well recognized in the general law.⁴ It should not be narrowly applied in a remedial act such as the one before us when the only purpose of the charge is to set in motion an inquiry by the Board to determine whether a violation has occurred.

Viewed in this light, we are of the opinion that the company's contention that the second amended charge alleged unfair labor practices not alleged in the original or in the first amended charge is not well founded.

The first charge was filed September 23, 1947. It alleged in the general language of the statute that the company had interfered with, restrained and coerced its employees, discriminated in regard to hire and tenure and had refused to bargain in good faith in violation of their rights under Section 7 of the Act, 29 U.S.C.A. § 157. The first amended charge was filed November 7, 1947. It charged that the company had "since June 14, 1947, refused to bargain in good faith * * * and refused to reinstate upon application of the employees named in Appendix A." The second amended charge upon which the complaint was issued was filed on April 8, 1948. It charged that since about August 11 1947, the company had threatened its employees with loss of seniority and their jobs if they engaged in a strike; told them during the course of the strike that unless they returned to work they would lose their seniority and their jobs; and told them to repudiate the Union and that unless they did so they would be discharged. That on or about August 23, 1947, the company through its officers and representatives discharged the employees listed in Appendix "A" because of having engaged in a strike against the company, because of membership in the Union, and because of engaging in other concerted activities for the purpose of collective bargaining, etc.

The first charge is general in its terms. It merely alleged violations of the employees' rights under Section 7 by the company in restraining and coercing the employees and in discriminating against them in regard to hire and tenure and in refusing to bargain in good faith. The first amended charge alleged refusal to bargain and refusal to reinstate employees because of Union activities. The second amended charge merely alleged in particular acts constituting unfair labor practices under Section 7 of the Act. There is nothing inconsistent in the first or second amended charge with the general allegations of the original charge. They are somewhat in the nature of a bill of particulars making more definite the general allegations of the original charge and thus relate back to the original charge.

The facts are involved. The record is long, and as usual in such cases, there is conflict in the evidence. The following facts are, however, without dispute.

The American Federation of Grain Processors, A. F. of L., herein called the Union, has been since November 2, 1939, the certified bargaining representative of the company's production and maintenance employees. It had executed yearly collective bargaining agreements with the company from 1939 until 1947. On June 9, 1947, pursuant to a renewal clause in the existing collective bargaining agreement, which was to expire July 7, 1947, negotiations were begun between the company and the Union. Disagreements arose between the parties and by early August an impasse had been reached in the contract negotiations on the issues of (1) a maintenance of membership clause, (2) holiday pay, and (3) the inclusion of second millers, a class of minor supervisors, in the appropriate unit. On August 8, the employees voted to strike. The following day Labor Director Palmer was notified that the employees would strike on August 11. The employees struck on schedule. At the time of the strike the company had about 175 to 200 production and maintenance employees, of whom 148 were Union members. The strike did not result in a complete shut down of the Mill. The company continued to operate the plant with about 30 employees, ten of whom were Union members.

On the day of the strike the company mailed a copy of a letter to its employees outlining its position.⁵

On August 15, the company notified all of the strikers by letter that it intended to re-man and operate its plant with new employees; that it thought a fair warning period for the return of the old employees would be August 23, and that it hoped they would return to their jobs and that if they did not return the company had no other alternative than to hire new employees to take the jobs "which you have vacated."⁶

On August 19, a meeting was held between representatives of the company and the Union. At that time, according to the Union witnesses, representatives of the company stated: "The company is hiring new employees and they have promised them permanent jobs and they intend to keep their promise, and the company's position is that those people that are on strike definitely do not have seniority. If they come back, they will come back as new employees."

On September 6, the company wrote each of the strikers notifying them that they were no longer covered by the group insurance policy and advised them that they had until September 25, 1947, to convert to a standard policy.⁷

On September 12, the company wrote the employees, as follows: "Since you have terminated your employment with this company, if you have any clothes or other personal belongings at the plant, we would like for you to call for them by September 16, 1947 * * *."

On September 16, 1947, another meeting was held between the representatives of the Union and the Company. The subjects discussed at this meeting are in controversy and will be hereinafter discussed. At the September 16 meeting, the company made an offer of settlement which was reduced to writing, submitted to the Union members and was rejected. The proposed settlement provided for the exclusion of second millers from the bargaining unit; voluntary maintenance of membership; no offer with respect to holidays not worked; that the company should have the exclusive right to pick the employees that were to return and that their seniority was to be restored without regard to Union affiliation.

On October 7, another meeting was held between the Company and the Union. The proposed contract of September 16 was reworded and was submitted to the Union members and was accepted. A new contract was thereupon executed and the proposed settlement was incorporated in the contract as Section 12 thereof. It provided, so far as material, that the Union would submit to the company within two days after the signing of the contract a list of names of the employees of the Union who wished to immediately resume their employment. That the company would, as soon as possible thereafter and not more than three days thereafter, furnish the Union a list of those Union members (1) whom it would immediately put back to work, and (2) whom it would put back to work as soon as possible, and not to exceed a period of thirty days.

The company agreed to give every consideration to those seeking employment in their former jobs or jobs closely related thereto, with the employees taken back having a preferential right to their old jobs in cases of vacancy, to restore full seniority rights to those reemployed, retroactive to July 7, 1947.

The strike terminated on October 17. Following the end of the strike, the Union submitted 120 names of former employees as those desiring reinstatement. The company offered immediate reemployment to eleven and agreed to take back twenty-one others when openings arose. All strikers were individually considered for reemployment by the supervisory employees under instructions given them by the General Manager to rehire all the men that they felt would make good employees or...