National Labor Rel. Bd. v. Fant Milling Co.

Citation258 F.2d 851
Decision Date01 August 1958
Docket NumberNo. 16953.,16953.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. FANT MILLING COMPANY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jerome D. Fenton, General Counsel, Thomas J. McDermott, and Stephen Leonard, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Frederick U. Reel, and Maurice Alexander, Attys. N. L. R. B., Washington, D. C., for petitioner.

O. B. Fisher, J. D. McLaughlin, Gillespie & Gillespie, Sherman, Tex., Fisher, McLaughlin & Harrison, Paris, Tex., for respondent.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.

CAMERON, Circuit Judge.

The question presented by Petitioner's prayer for enforcement of its order of April 19, 1957 is whether the Respondent, pursuant to its duty as imposed by National Labor Relations Act,1 bargained in good faith with respect to the matters contained in the charge filed against it by its certified Union. Respondent, Fant Milling Company, was, during the period involved, engaged in the business of milling flour at Sherman, Texas, and employed about two hundred people. Pursuant to an election, American Federation of Grain Millers, AFL, was certified June 26, 1953 as the exclusive bargaining agent for its employees.

From August 13, 1953 to November 19, 1954 Respondent and the Union met on nineteen different occasions in which discussions were held directed towards working out a contract between the parties.2 The meetings between the parties were conducted by the local officers and attorneys of the Company, on the one side, and two national representatives of the Union from Oklahoma and a local committee of three to six employees, on the other. No contract having been agreed upon, Respondent, having concluded that the Union no longer represented a majority of its employees, on October 7, 1954 granted a general wage increase to its employees after discussion with the Union representatives but without specific notice to them; and, on November 19, 1954, it posted a notice that it was informed that the Union no longer represented the majority of employees and that it would not do business further with the Union, but would deal directly with its employees.

The Union had, many months prior thereto, filed a charge of unfair labor practices against Respondent upon which, fifteen months later, a complaint was issued; and a hearing was held before a Trial Examiner, who entered his intermediate report finding Respondent guilty of failure to bargain in good faith, and recommending that a cease and desist order be entered. The Board, one member dissenting,3 adopted the Trial Examiner's report and entered the order which it is seeking to have us enforce.

The question before us will be resolved largely upon a determination of the effect of evidence as to what transpired long after the charge was filed, and as to negotiations and actions of the parties not embraced in or contemplated by the charge.4 The Trial Examiner and the Board predicated their orders essentially on the withdrawal of union recognition, one step in which process was the wage increase of October, 1954. The dissenting member has set forth succinctly his estimate of the attitude of the majority and the basis of its decision, and we quote in the margin some excerpts from his dissent.5 We agree with the estimate and the conclusions as set forth in the quoted portions of this dissent.

An understanding of the significant facts with which we are dealing requires that a few decisive dates be kept in mind. May 20, 1954, the Union filed its charge of unfair labor practices, naming November 21, 1953 as the date of their beginning (in recognition of the 6 months period provided in the statute). At the time the charge was filed, eleven bargaining sessions had been held and a wage increase had been given certain employees effective April 19. July 13, the Regional Director refused to issue a complaint based upon this charge, and July 31 the Union filed a written request for review of this refusal, which the dissenting member treated as an appeal to the General Counsel. November 20, the Company posted a notice withdrawing its recognition of the Union as bargaining agent, preceded by the general wage increase of October 7. January 24, 1955, the Regional Director withdrew his refusal to issue the complaint and followed this action with the issuance of a complaint August 17, 1955. Eight bargaining sessions had been held between the date of the filing of the charge and the date of the issuance of the complaint.

The charge signed by Ralph Cox, international representative for the Union, was made out on a printed form and we quote in the margin the contents of the charge under the printed heading "Basis of the Charge."6 The complaint, issued about fifteen months thereafter and based on the charge of May 20, begins with the statement: "It having been charged by American Federation of Grain Millers * * * that Respondent has engaged in and is now engaging in certain unfair labor practices * * * the General Counsel * * * hereby alleges as follows."7 Both the complaint and the notice of hearing referred to the charge of May 20, 1954, and a copy of that charge was therewith served upon Respondent.

In summary, therefore, the determinant facts are these: May 20, 1954, the Union filed a charge of unfair labor practices based upon Respondent's actions during the six months preceding that date. The Regional Director refused to file a complaint based upon that charge and those actions. Fifteen months after the charge had been filed, the Regional Director issued and served the complaint before us purporting to be based upon it, but setting up, as the only factual recital of an unfair labor practice, a wage increase granted 4½ months after the filing of the charge. Based upon this wage increase of October 7 and the ensuing withdrawal of recognition of the Union, the Trial Examiner and the Labor Board concluded that Respondent had failed to bargain in good faith with the Union. It is perfectly plain, as set out in the dissenting member's language quoted supra, that, without these happenings more than four months after the filing of the charge, the order before us would not have been entered — in fact, the complaint would not have been issued.

We think the order was not justified by, but was in plain disregard of, the statute which alone vested the Board with authority to act:

"Whenever it is charged that any person has engaged in or is engaged in any such unfair labor practice, the Board * * * shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board * * *: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made * * * Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. * * *" Emphasis added. 29 U.S.C.A. § 160(b).

Since the authority of the Board derives solely from the statute, it is clear that effective action can be taken only when the machinery set up by the statute is substantially followed. It is further clear that a charge must set up facts showing an unfair labor practice as defined in 29 U.S.C.A. § 158, and the facts must be predicated on actions which have already been taken. When the Board is satisfied that the facts contained in the charge have been substantiated, it or its agents then have power to issue and serve upon the person charged with the improper action "a complaint stating the charges in that respect." This language can have no meaning except that the complaint must faithfully reflect the facts constituting the unfair labor practices as presented in the charge.

Assuming that another charge could have been filed embracing the happenings of October and November, 1954, or the original charge amended to include them, it was not proper for the Board to proceed on the basis of the charge of May 20, 1954 and enter the order here before us bottomed upon actions taken more than four months later.8 That this is what it did is exemplified by what the Board said was the issue it was trying: "The issue before us is whether the Respondent, in this long course of dealing with the Union, fulfilled its duty to negotiate in good faith so as to justify its refusal in November 1954 to prolong the discussion of collective bargaining issues, or whether on the other hand it evaded its legal duty and was thus without warrant in November 1954 and thereafter for refusing to meet with the Union." Substantially eight of the eleven pages constituting its decision are devoted to a discussion of what transpired in September, October and November.9 If the Board could thus adjudicate the rights of the parties on such subsequent actions which as far as the record reveals, developed from the later stages of the negotiations, using the period covered by the charge merely as background, the statutory scheme would be frustrated and the charge, which alone conferred jurisdiction, would serve only as the trigger to set the mechanism in motion, leaving the Board and its agent carte blanche to expand the charge as they might please, or to ignore it altogether.

The Board predicated its authority to try the charge on the issues thus defined by it, on our case of N.L.R.B. v. Anchor Rome Mills, Inc., 1956, 228 F.2d 775. We do not agree that the cases are apposite. Anchor involved refusal of the employer to hire and keep 346 named persons who had engaged in a strike against it. Two charges were filed by the union, one in November, 1949, and the other in May, 1950, and both were couched in very broad terms. The complaint filed by the General Counsel...

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    ...the charge as [it] might please or to ignore it altogether.' " Fant, 360 U.S. at 309, 79 S.Ct. at 1184 (quoting NLRB v. Fant Milling Co., 258 F.2d 851, 856 (5th Cir.1958)). Rather, in an amended complaint the Board only may allege unfair labor practices " 'which are related to those alleged......
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