National Labor Relations Board v. Kohler Company

• Decision Date: 07 April 1955
• Docket Number: 11283.,No. 11272,11272
• Citation: 220 F.2d 3
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KOHLER COMPANY, Respondent. Vernon BICHLER, Clarence J. Wield, Raymond E. Majerus, Vernon Clark, James H. Lacy, Donald L. Ramaker, John Zanskas, Raymond W. Reseburg, Eugene A. Pfister, Robert Kretsch, Robert E. Wilcox and James C. Dekker, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

220 F.2d 3 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KOHLER COMPANY, Respondent.

Vernon BICHLER, Clarence J. Wield, Raymond E. Majerus, Vernon Clark, James H. Lacy, Donald L. Ramaker, John Zanskas, Raymond W. Reseburg, Eugene A. Pfister, Robert Kretsch, Robert E. Wilcox and James C. Dekker, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 11272, 11283.

United States Court of Appeals, Seventh Circuit.

March 7, 1955.

Rehearing Denied April 7, 1955.

COPYRIGHT MATERIAL OMITTED

David P. Findling, Associate Gen. Counsel, Irving M. Herman, Atty., George J. Bott, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Samuel M. Singer, Atty., N. L. R. B., Washington, D. C., for National Labor Relations Board.

William F. Howe, Washington, D. C., Lyman C. Conger, Edward J. Hammer, Kohler, Wis., Jerome Powell, Gall, Lane & Howe, Washington, D. C., for Kohler Co.

Max Raskin, Milwaukee, Wis., David Rabinovitz, Sheboygan, Wis., of counsel, for Vernon Bichler and others.

Before MAJOR, FINNEGAN and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

These two cases involve two related matters which have been consolidated for all purposes by the order of this court. The first matter is a petition by the National Labor Relations Board, hereinafter referred to as the Board, for enforcement of its order against the Kohler Company, hereinafter referred to as the Company. The second matter is a petition by twelve former employees of the Company to review and set aside that part of the Board's order which dismissed the allegations of the complaint that the Company by discriminatively discharging the twelve employees violated Sections 8(a) (3) and (1) of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq.

The Company has its principal manufacturing plant, office and place of business at Kohler, Wisconsin. It is engaged in the manufacture, sale and distribution of plumbing fixtures, heating equipment, electrical plants, air-cooled engines and precision parts, and it annually ships finished products valued in excess of $1,000,000 to points outside of Wisconsin.

The Board adopted the findings of the Trial Examiner that the Company, through its supervisory employees, had engaged in the coercion and restraint of its employees in violation of Section 8(a) (1) of the Act and that it had discriminatorily discharged employee Edward Ertel in violation of Section 8(a) (3) and (1) of the Act. Again following the findings and recommendations of the Trial Examiner, the Board dismissed that part of the complaint which alleged violation of Sections 8(a) (3) and (1) in the discharge of the twelve employees.

From 1934 and until the spring of 1951 the Kohler Workers Association, hereinafter referred to as KWA, was the bargaining agent of the Company's employees. In 1951 the United Automobile Workers of America, CIO, hereinafter referred to as UAW, challenged the right of KWA to represent the employees by a Board-conducted election which was held pursuant to a petition by the UAW. This election was won by KWA. A subsequent election, held in June 1952 after an intensive organizing campaign by UAW, was won by UAW, which was then certified by the Board as the bargaining representative. Shortly thereafter KWA affiliated with UAW.

No. 11272

The Company contends that several of the allegations in the complaint were not supported by a timely charge as required by Section 10(b) of the Act. Section 10(b) provides that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge * * *." Three charges were filed with the Board: one on November 2, 1951, and two on May 5, 1952. All of the allegations which the Company insists were not based on a timely charge concerned allegedly coercive statements made by Company supervisors to its employees. Although they were made at different times, all of these statements except one were made within six months of at least one of the charges. Since all the charges are substantially the same, there is no question of timeliness except as to the one statement which was made subsequent to the date of all the charges. The real question concerns whether or not these statements were properly included in the Board's complaint when the charges alleged improper discharges and, generally, that "by these acts and by other acts and conduct the Company * * * did interfere with, restrain and coerce its employees in the exercise of their rights guaranteed in Section 7 of the Act."

Several early cases held that, because Section 10(b) gives the Board the power to issue a complaint only after a charge has been filed, the Board's complaint must be limited to the allegations of the charge. Joanna Cotton Mills v. N. L. R. B., 4 Cir., 176 F.2d 749; N. L. R. B. v. Hopwood Retinning Co., 2 Cir., 98 F.2d 97, 101. But the courts then began to interpret Section 10(b) as requiring something less than exact similarity between charge and complaint. It has been said repeatedly that the charge is not a pleading, being intended, rather, as an administrative step necessary to set the Board's investigatory process in motion. The charge should, therefore, be construed broadly so as to allow any specific allegations in the complaint that are of "the same general nature." N. L. R. B. v. Thomas Drayage & Rig Co., 9 Cir., 206 F.2d 857, 859-60; Indiana Metal Products Corp. v. N. L. R. B., 7 Cir., 202 F.2d 613, 619; N. L. R. B. v. Bradley Washfountain Co., 7 Cir., 192 F.2d 144, 149; N. L. R. B. v. Kingston Cake Co., 3 Cir., 191 F.2d 563, 567; Kansas Milling Co. v. N. L. R. B., 10 Cir., 185 F.2d 413, 415; N. L. R. B. v. Greater New York Broadcasting Corp., 2 Cir., 147 F.2d 337, 338; Consumers Power Co. v. N. L. R. B., 6 Cir., 113 F.2d 38, 42.

This court has gone far in calling for liberal construction of the charge. In N. L. R. B. v. Bradley Washfountain Co., 192 F.2d at page 149, we said: "The controversy between the Board and the employer begins with the complaint prepared by the Board. Case cited. Consequently it is without significance that the complaint was broader than the original charge. The latter called upon the Board to make inquiry and, if thought proper, to file a complaint. In pursuance of its administrative duty, the Board, in due course, issued its complaint and thereupon the controversy between the Board and respondent came into existence. Nothing that transpired before the filing of the complaint in anywise limited the right of the Board to include in it the specific charges which it contained."

The facts in the Bradley case, however, did not require as liberal a construction of the charge as do those in the present case. In the Bradley case the charge accused the company of making wage increases without consulting or giving notice to the union. In its complaint the Board alleged that the company had increased wages before an impasse had been reached in bargaining. The actual act charged was the same as that alleged in the complaint, but the circumstances that, it was claimed, made it an unfair labor practice were different.

The facts presented here are a bit more difficult. The charges accused the Company of discharging certain named employees, because of their active support of UAW, in violation of Sections 8(a) (3) and (1). The complaint alleged, inter alia, certain improper statements also in violation of Sections 8(a) (3) and (1). The only relationship between the discharges and the statements alleged in the complaint was that they were both found to be improper acts of the Company done in the course of a protracted struggle between the Company and UAW in an attempt to discourage employees from joining the union. They were totally different kinds of acts but done during a common endeavor for a single purpose. Is this relationship enough to say that the complaint was adequately supported by the charges? We have answered this question in the affirmative.

The Company argues that the charge must specify, at least in a general way, the acts alleged in the complaint so that the respondent will have "notice" of the charges being made against it. If there were no reason for limiting the complaint other than the respondent's right to notice, we would be forced to say that there need be no relationship at all between charge and ensuing complaint. As we said in N. L. R. B. v. Bradley Washfountain Co., supra, the legal proceeding between the Board and the respondent begins with the complaint. The complaint furnishes notice of the charges being made. It is doubtful that adoption of the Company's contention for strict adherence of the complaint to the charge would result in appreciably greater opportunities for preparedness on the part of respondents. We note that here the Company in its answer to the complaint simply denied all its allegations: those specifically mentioned in the charges as well as those not mentioned. Almost two months elapsed between the issuance of the complaint on January 28, 1953, and the beginning of hearings on March 17, 1953. No claim is made that the Company did not have time to prepare its defense or that it was prejudiced by the variance between the charge and the complaint.

To hold that the Board cannot include anything in a complaint that the respondent was not given notice of in a charge would greatly reduce the usefulness of the Board's investigatory function. A major reason for having the General Counsel of the Board take over and try the charging parties' case is to make it possible for single employees to enforce their rights in an area where that takes considerable money and experience. The courts should not defeat this purpose by insisting that the failure of the charging party to initially describe in detail all of the separate alleged unfair labor practices shall limit the issues to be alleged in the complaint and tried by the Board.

There must be some relationship between charge and complaint, however....