NLRB v. REX DISPOSABLES, DIV. OF DHJ INDUSTRIES, INC.

• Decision Date: 20 May 1974
• Docket Number: No. 73-1785.,73-1785.
• Citation: 494 F.2d 588
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REX DISPOSABLES, DIVISION OF DHJ INDUSTRIES, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

494 F.2d 588 (1974)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. REX DISPOSABLES, DIVISION OF DHJ INDUSTRIES, INC., Respondent.

No. 73-1785.

United States Court of Appeals, Fifth Circuit.

May 20, 1974.

Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Elmer P. Davis, Director, Region 16, N. L. R. B., Fort Worth, Tex., Jonathan G. Axelrod, Washington, D. C., for petitioner.

Richard E. Miller, Ronald B. Bianchi, New York City, for respondent.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

RIVES, Circuit Judge:

Rex Disposables, a division of DHJ Industries, Inc., manufactures disposable hospital garments and other related items at a small facility in Quanah, Texas. On January 31, 1972, the Textile Workers Union of America, AFL-CIO-CLC filed a charge claiming that Rex violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act by discharging five employees because of their union activities. The Union amended its charge on March 27, 1972 to claim the wrongful layoff of the same five employees. Under date of March 29, 1972, the Regional Director of the NLRB advised the Union by letter that:

"As a result of the investigation, it does not appear that there is sufficient evidence of violation of Section 8(a)(3) of the Act. More particularly, the investigation disclosed insufficient evidence to sustain the burden of proving that Asa L. Greene, Barbara Mayes, Shirley Wade, Helen Stuart and Peggy Johnson were laid off for reasons other than lawful, economic considerations. I am, therefore, refusing to issue a complaint on the 8(a)(3) portion of the charge. However, the 8(a)(1) portion of the charge is continued before us for further action."

The Regional Director issued a complaint on April 12, 1972, which alleged that Rex violated Section 8(a)(1) by threat of layoffs for union activities, coercive interrogation of employees regarding union activities, and surveillance of union meetings.

A hearing was held on May 24 and 25, 1972. By decision dated September 11, 1972, the Administrative Law Judge found that Rex had engaged in the unfair labor practices alleged in the complaint. On February 8, 1973, the Board reversed the Administrative Law Judge's conclusion that Rex had threatened to lay off employees based upon union activities, but affirmed the rest of his rulings, findings and conclusions. The Board modified the Administrative Law Judge's proposed order to reflect its reversal on the issue of the threat of layoffs. As modified, the order requires that Rex cease and desist from coercive interrogation, surveillance and certain other activities. The order requires also the posting of a Notice to Employees, and a report on compliance. We enforce the Board's order.

I.

Rex claims the Regional Director exceeded his authority by issuing the complaint in this case after dismissing the specific charges filed by the Union. The Board contends that the complaint was closely related to the original specific charge and the amended charge of the Union, and that the Regional Director therefore acted within his statutory authority under 29 U.S.C. § 160(b).

On a form entitled "Charge Against Employer," in a blank space provided for the "Basis of the Charge . . .," the Union alleged the discriminatory layoff of five employees because of their union activities. At the bottom of the space allowed to detail the basis of the charge, the following sentence appears, apparently as a part of the printed form: "By the above and other acts, the above-named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed by Section 7 of the Act." As has been stated, the Regional Director decided that there was insufficient evidence to issue a complaint alleging that the layoffs violated the Act, but nonetheless did issue a complaint alleging that Rex had engaged in "other acts" which violated Section 8(a)(1). These included a threat of layoffs for union activities, coercive interrogations, and surveillance of union meetings.

In NLRB v. Fant Milling Co., 1959, 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243, the Supreme Court held that in formulating a complaint and in finding a violation of Section 8 of the National Labor Relations Act, the Board may take cognizance of events occurring subsequent to the filing of the charge upon which the complaint is based. The Court justified its decision in the following manner:

"A charge filed with the Labor Board is not to be measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to set in motion the machinery of an inquiry. Labor Board v. I. & M. Electric Co., 318 U.S. 9, 18, 63 S.Ct. 394, 400, 87 L.Ed. 579. The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party. To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights. This would be alien to the basic purpose of the Act. The Board was created not to adjudicate private controversies but to advance the public interest in eliminating obstructions to interstate commerce, as this Court has recognized from the beginning. Labor Board v. Jones & Laughlin, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893.

"Once its jurisdiction is invoked the Board must be left free to make full inquiry under its broad investigatory power in order properly to discharge the duty of protecting public rights which Congress has imposed upon it. There can be no justification for confining such an inquiry to the precise particularizations of a charge. For these reasons we adhere to the views expressed in National Licorice Co. v. Labor Board 309 U.S. 350, 60 S.Ct. 569, 84 L.Ed. 799."

360 U.S. at 307-309.

Relying in part upon the above-quoted language from Fant Milling, this Court has stated that "the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get `so completely outside . . . the charge that it may be said to be initiating the proceeding on its own motion . . . .' NLRB v. Kohler Co. 7 Cir. 1955, 220 F.2d 3." Texas Industries, Inc. v. NLRB, 5 Cir. 1964, 336 F.2d 128, 132. Also see NLRB v. International Union of Operating Eng., Local 925, 5 Cir. 1972, 460 F. 2d 589, 596; NLRB v. Reliance Steel Products Co., 5 Cir. 1963, 322 F.2d 49, 53. 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," are legally sufficient to cause inclusion of these "other acts" in the complaint if those acts are sufficiently related to the specific acts alleged. NLRB v. Central Power & Light Co., 5 Cir. 1970, 425 F.2d 1318, 1320. The requirement of a sufficient relationship between the charge and the complaint does not necessarily mean a "close" relationship; "the relationship need be close enough only to negate the possibility that the Board is proceeding on its own initiative rather than pursuant to a charge." NLRB v. Central Power & Light Co., supra, at 1321 n. 3.

The relationship between the specific charge and the complaint in this case is more than sufficient to convince us that the Board was not acting on its own initiative. The Union specifically charged discriminatory layoffs of five employees on January 28. The complaint alleged that on January 26 the plant manager had threatened layoffs because of union activities, and that Rex had engaged in coercive interrogation of employees and surveillance of union meetings on January 27 and 28. It is easily understandable how a close scrutiny of the facts surrounding the January 28 layoffs could lead to the discovery of the unfair labor practices alleged in the complaint. Investigation of the employer's motivation in laying off certain employees would usually involve inquiry into whether the employer had recently threatened to lay off employees because of their union activities. A thorough probe of the Union's charges might also include inquiry into whether the employer had engaged in interrogation of employees or surveillance of union meetings in order to identify employees involved in union activities.¹ As suggested by the Board, employer identification of union supporters would be a necessary step for discriminatory treatment of particular employees. Thus, the specific allegations in the charges and the allegations in the complaint were closely related in time, and the evidence used as a basis for the complaint would naturally have been gathered during a proper investigation of the charges.

II.

Rex urges that it was denied a fair hearing because the Administrative Law Judge denied all requests for discovery. On oral argument in this Court, the attorney who appeared for Rex at the hearing on the complaint conceded that he was not surprised by the testimony about surveillance. On the assumption that Rex therefore suffered no prejudice as to the surveillance testimony, we examine the denial of discovery only as relevant to the alleged coercive interrogations.

Paragraph 7(a) of the Complaint provided as follows:

"(a) On or about the dates set opposite their respective names, Respondent, by its following-named supervisors and agents, orally interrogated employees at its Quanah plant regarding their Union membership, activities and desires:

                "Paul Ballard        January 27, 1972
                "Virginia Greening   January 27, 1972
                                     January 28, 1972"
                

(App. 339.) Rex claims that it was unable to ascertain prior to the hearing exactly who was interrogated. This claim is believable. Rex employed about sixty persons during the days in question; the alleged interrogations were relatively brief and occurred in the general working area...