NLRB v. Central Power & Light Company

• Decision Date: 07 July 1970
• Docket Number: No. 27699.,27699.
• Citation: 425 F.2d 1318
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTRAL POWER & LIGHT COMPANY, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

425 F.2d 1318 (1970)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTRAL POWER & LIGHT COMPANY, Respondent.

No. 27699.

United States Court of Appeals, Fifth Circuit.

May 18, 1970.

Rehearing Denied and Rehearing Denied July 7, 1970.

Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., Washington, D. C., Clifford Potter, Director, Region 23, N. L.R.B., Houston, Tex., Allen H. Sachsel, Atty., N.L.R.B., Washington, D. C., for petitioner.

G. William Baab, Dallas, Tex., for intervenor Intl. Brotherhood of Electrical Workers, AFL-CIO.

L. G. Clinton, Jr., A. J. Harper, II, Houston, Tex., for respondent.

Before THORNBERRY, DYER and CLARK, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied July 7, 1970.

THORNBERRY, Circuit Judge:

This is a petition by the National Labor Relations Board to have this Court enforce an order of the Board against the Central Power and Light Company. The Company is required by the order to cease and desist from unfair labor practices, reinstate a discharged employee, give certain other types of relief, and post notices. Although the evidence adduced by the Board is far from overwhelming, upon close inspection we have concluded that it meets the substantial evidence standard, which is the standard this Court is required to employ in reviewing the Board's use of its expertise. Accordingly, we enforce the order.

Before considering the merits of the Board's findings, we are met with a statute of limitations problem. The Company contends that the Board was barred by the statute of limitations, section 10(b) of the Act, from considering an allegedly discriminatory no-solicitation rule promulgated by the Company. We first discuss this issue and then proceed to consider whether substantial evidence supports each of the Board's findings of violations.

I. THE SECTION 10(b) ISSUE

Section 10(b)¹ of the National Labor Relations Act states 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." The limitations argument applies only to the allegedly illegal no-solicitation rule, but the Company has pursued it vigorously. It arises from the following facts: The Board alleges that the rule was promulgated in March, April and May, 1967. Within six months of that date, the Union filed a charge with the Board, alleging the discriminatory discharge of employee Wayne Davis and stating that the Company had violated section 7 rights by "other acts and conduct." The charge did not specifically include the no-solicitation rule. The NLRB issued a complaint based upon the charge and tried the case.

In November, more than six months after the promulgation of the rule, the Union filed a second charge with the Board. This charge alleged that a reprimand issued to employee Uhlenhaker was discriminatory and made other assertions of violations, again without specifically mentioning the no-solicitation rule but including the same "other acts and conduct" language that the first charge contained. A few months after the second complaint was filed, the possibility that the Uhlenhaker reprimand was related to the no-solicitation rule apparently occurred to the General Counsel, and he moved to reopen the first complaint and consolidate it with the second. The Trial Examiner granted this motion. Thereafter, the General Counsel moved to amend the consolidated complaint to include allegation of the no-solicitation rule as promulgated in May. This motion, too, was granted. The Company argues that consideration of the no-solicitation rule was barred because it was promulgated more than six months before the second charge was filed and because it was not specifically enough alleged in either charge.

We have determined that section 10(b) did not bar the Board from considering the promulgation of the no-solicitation rule. Under these circumstances, the issue was properly brought before the Board by the first charge. The purpose of a charge is to set a board inquiry in motion. The inquiry may turn up events not specifically contemplated by the charge, but the Board's duty to the public then requires it to complain of those events if they are unfair labor practices. The charge is thus not intended to be a detailed pleading or to specify the issues ultimately to be raised before the Trial Examiner; the Board's complaint serves that function. All that the requirement is really concerned about is that the instigation of an investigation and complaint proceed under a formal charge made by the party aggrieved and not from the Board's own initiative.² 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; see also NLRB v. Bin-Dicator Co., 6th Cir. 1966, 356 F.2d 210, 214; NLRB v. Kohler Co., 7th Cir. 1955, 220 F.2d 3, 7-8; NLRB v. Gaynor News Co., 2nd Cir. 1952, 197 F.2d 719, 721; cf. NLRB v. Fant Milling Co., 1959, 360 U.S. 301, 307, 79 S.Ct. 1179, 1183, 3 L. Ed.2d 1243.³ All of the cases recognize that the Board has "broad leeway" in conducting its investigation and bringing its complaint. 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.

In another, related line of attack, the Company argues that the Board has used "the procedural device of consolidation" to "thwart and circumvent" the purposes of section 10(b). This argument appears to be based upon the fact that the General Counsel moved to reopen the first charge, then had it consolidated with the second. It seems, however, that if anything "thwarted and circumvented" the application of section 10(b) to the case it was the reopening of the first charge. But it is well settled that the determination to reopen a case is a matter resting within the discretion of the Trial Examiner and the Board and should not be disturbed where no abuse of that discretion has been shown. NLRB v. Yale Mfg. Co., 1st Cir. 1966, 356 F.2d 69, 71; Phillips Petroleum Co. v. NLRB, 5th Cir. 1965, 206 F.2d 26, 30; Metal Blast, Inc. v. NLRB, 6th Cir. 1963, 324 F.2d 602, 604. In Fant Milling, supra, the Supreme Court approved a Board decision to reissue a withdrawn complaint in light of evidence that appeared after the withdrawal. 360 U.S. at 302-304, 79 S.Ct. at 1180-1181. The case at bar is similar, and certainly furnishes basis for the Board's exercise of its discretion to reopen. The Board found, and its finding is supported by substantial evidence, that the Uhlenhaker reprimand letter was an enforcement of the no-solicitation rule. The reprimand letter was sent after the first charge had been tried, and it related back to and brought into focus the "other acts and conduct" that the charge covered. The General Counsel indicated that the Board had not enough evidence of illegality of the no-solicitation rule at the time the first charge was tried. Under these facts, reopening of the first charge was appropriate. Finally, if the Company's argument against the thwarting of section 10(b) by consolidation is directed against consideration of events charged in the second charge together with the first, the argument is frivolous. Fant Milling, supra, holds directly that events subsequent to a charge may be included in the Board's complaint or used as evidence at trial. And the cases clearly indicate that when charges are consolidated, all evidence pertaining to either may be introduced at trial. E. g., NLRB v. Dal-Tex Optical Co., 5th Cir. 1962, 310 F.2d 58, 61.

The cases the Company has cited to show the applicability of the limitations statute are not in point. In NLRB v. Electric Furnace Co., 6th Cir. 1964, 327 F.2d 373, 375, and NLRB v. Silver Bakery, Inc., 1st Cir. 1965, 351 F.2d 37, the charging parties withdrew the charges filed, with Board approval, and the Board later attempted to base unfair labor complaints upon them. Such a procedure would clearly violate section 10(b), since a withdrawn charge is no charge at all. And in International Union, United Mine Workers of America v. NL RB (Blue Ridge Coal Corp.), 1962, 112 U.S.App.D.C. 60, 299 F.2d 441, the Board sought to extend a charge by one company against a union to cover unfair labor practices the union had allegedly committed against several other companies. Without approving or disapproving the result of that case, we find it inapplicable to our case, which involves a single struggle between a union and a company. We hold that under the facts here presented section 10(b) did not bar the Board's consideration of the no-solicitation rule. We now proceed to consider whether the Board's findings of violations are supported by substantial evidence.

II. THE SUBSTANTIAL EVIDENCE QUESTION

The International Brotherhood of Electrical Workers began an effort to organize the Company on or before January 27, 1967. It is clear that the Company was aware of the Union's activities very early, because its district manager directed a letter to all employees advising them that the Union could do them no good but could do "a lot of harm." Also, in early spring, the Company promulgated its allegedly discriminatory no-solicitation rule. Throughout the summer, the Company discharged employee Wayne Davis, allegedly for his union sympathies, reprimanded employee ...